Courtney v Medtel Pty Limited (No 4) [2004] FCA 1233

FEDERAL COURT OF AUSTRALIA

Courtney v Medtel Pty Limited (No 4) [2004] FCA 1233

REPRESENTATIVE PROCEEDINGS – notice to group members of proposed settlement – whether press advertisement required Federal Court of Australia Act 1976 (Cth) ss 33J, 33V, 33X, 33Y

Femcare Ltd v Bright (2000) 100 FCR 331 cited 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 15 SEPTEMBER 2004

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

(acn 076 530 946)

FIRST RESPONDENT

NO 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: 15 SEPTEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The form and content of the notice which is Annexure 'A' to the Respondents' Amended Notice of Motion filed 15 September 2004 (as further amended on 15 September 2004) be approved for the purposes of s 33Y(2) of the Federal Court of Australia Act 1976 (Cth) ('Federal Court Act'). 2. Pursuant to s 33J(3) of the Federal Court Act, the date by which the Remaining Group Members may opt out of these proceedings be extended to 11 October 2004.

THE COURT DIRECTS THAT:

3. The Applicant file and serve any affidavits in respect of the Respondents' Amended Notice of Motion filed 15 September 2004, on or before 20 September 2004. 4. The Respondents' solicitors send each Remaining Group Member who has not retained the Applicant's solicitors the notice referred to in Order 1, by prepaid ordinary mail to their last known address, on or before 27 September 2004. 5. The Applicant's solicitors send each Remaining Group Member retained by them the notice referred to in Order 1, by prepaid ordinary mail to their last known address, on or before 27 September 2004. 6. In preparing and sending the notice referred to in Order 1, the parties adopt the following protocol: (a) where the parties' solicitors know the identity of the executor or administrator of the estate of a deceased patient, the envelope containing the notices be addressed to that executor or administrator; (b) where the parties' solicitors do not know the identity of the executor or administrator of the estate of a deceased patient, the envelope containing the notice shall be addressed to 'The Estate of [name of deceased patient]'; and (c) where a notice is returned to sender, the parties' solicitors shall work together to identify the correct address for the Remaining Group Member, and wherever possible, re-post the notice by prepaid ordinary mail. These endeavours should include, as appropriate, electronic White Pages searches, electoral roll searches and searches in the Probate Division of the Supreme Court of the State and Territory in which the deceased patient last resided where such searches are available to the public. 7. The Respondents' Amended Notice of Motion filed 15 September 2004 be set down for hearing at 10:15 am on 26 October 2004. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.