Courtney v Medtel Pty Limited (No 2) [2003] FCA 129

FEDERAL COURT OF AUSTRALIA

Courtney v Medtel Pty Limited (No 2) [2003] FCA 129 KEVIN GLYNN COURTNEY in a representative capacity on behalf of the persons referred to in par 1 of the Eighth Amended Statement of Claim v MEDTEL PTY LIMITED & ANOR N 661 of 2000 SACKVILLE J SYDNEY 3 MARCH 2003

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 the persons referred to in paragraph 1 of the Eighth 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: 3 MARCH 2003

PLACE: SYDNEY

THE COURT ORDERS THAT: 1. The questions identified in the order made on 16 August 2002 pursuant to Federal Court Rules, O 29 r 2, be answered as follows: (a) Whether the Pacemakers are subject to the Fault as defined in the Eighth Amended Statement of Claim: A. Inappropriate to answer. (b) Whether: (i) The Pacemakers are not reasonably fit for their purpose within the meaning of section 74B of the Trade Practices Act [1974 (Cth)]; (ii) The Pacemakers are not of merchantable quality within the meaning of section 74D of the Trade Practices Act [1974 (Cth)]: A. Those Pacemakers manufactured using yellow spool solder (as that expression is used in [89] of the judgment given on 5 February 2003) were (i) not reasonably fit for their purpose within the meaning of s 74B of the Trade Practices Act 1974 (Cth); and (ii) not of merchantable quality within the meaning of s 74D of the Trade Practices Act 1974 (Cth). (c) Whether, as a result of (i) The Pacemakers not being reasonably fit for their purpose; (ii) The Pacemakers not being of merchantable quality; (iii) The Applicant has suffered and may continue to suffer injury, loss and damage. A. Unnecessary to answer. 2. Judgment be entered in respect of the applicant's individual causes of action under ss 74B and 74D of the Trade Practices Act 1974 (Cth) for the applicant against the first respondent in the sum of $9,988.20, plus interest in the sum of $1,304.19. 3. The respondents provide to the applicant the following information, so far as it is reasonably available, in relation to each group member who has not opted out or settled his or her claim: (a) name; (b) address; (c) treating doctor; (d) whether the group member's Tempo pacemaker has been explanted; and (e) details of any amounts already reimbursed by the respondents, by 4 pm on 6 April 2003. 4. The applicant file and serve submissions and any evidence in relation to costs by 4 pm on 14 March 2003. 5. The respondents file and serve submissions and any evidence in relation to costs by 4 pm on 28 March 2003. 6. The applicant file and serve submissions and any evidence in reply in relation to costs by 4 pm on 5 April 2003. 7. The matter be listed for hearing on the question of costs on 17 April 2003, at 10.15 am. 8. The Motion filed by the first respondent on 11 February 2003 be dismissed, without prejudice to the first respondent's entitlement to file a further application for leave to appeal against the judgments given on 5 February 2003 and today and the orders made today. 9. Liberty to apply on 72 hours notice. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.