Earglow Pty Limited v Sigma Pharmaceuticals Limited [2012] FCA 1496

FEDERAL COURT OF AUSTRALIA

Earglow Pty Limited v Sigma Pharmaceuticals Limited [2012] FCA 1496 Citation: Earglow Pty Limited v Sigma Pharmaceuticals Limited [2012] FCA 1496

Parties: EARGLOW PTY LIMITED (ACN 055 664 769) v SIGMA PHARMACEUTICALS LIMITED (ACN 088 417 403)

File number(s): VID 933 of 2010

Judge: MIDDLETON J

Date of judgment: 19 December 2012

Legislation: Federal Court of Australia Act 1976 (Cth)

Date of hearing: 19 December 2012

Place: Melbourne

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 9

Counsel for the Applicant: L Armstrong

Solicitor for the Applicant: Slater & Gordon

Counsel for the Respondent: S Maiden

Solicitor for the Respondent: Minter Ellison

Counsel for the Objector: S Batten

Solicitor for the Objector: Batten Sacks Harvey Bruce

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 933 of 2010

BETWEEN: EARGLOW PTY LIMITED (ACN 055 664 769)

Applicant

AND: SIGMA PHARMACEUTICALS LIMITED (ACN 088 417 403)

Respondent

JUDGE: MIDDLETON J DATE OF ORDER: 19 DECEMBER 2012 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. Subject to further order, pursuant to section 37AF of the Federal Court of Australia Act 1976 (Cth) (the Act), the following evidence be forbidden from publication and be sealed on the Court file in envelopes marked "Not to be opened except by direction of the Court or a Judge": (a) the confidential affidavit of James Michael Higgins sworn 5 December 2012 and its annexures (First Confidential Higgins Affidavit); (b) the affidavit of Paul Linsdell sworn 5 December 2012 and its annexure; (c) the confidential affidavit of James Michael Higgins sworn 7 December 2012 and its annexures (Second Confidential Higgins Affidavit); (d) the confidential affidavit of James Michael Higgins sworn 18 December 2012 and its annexures (Third Confidential Higgins Affidavit); This order is made on the ground that it is necessary to prevent prejudice to the proper administration of justice. Approval of proposed settlement 2. Pursuant to section 33ZF of the Act, compliance with sections 33J and 33X(1)(a) of the Act be dispensed with. 3. Pursuant to section 33ZF of the Act, the Court authorizes the Applicant nunc pro tunc for and on behalf of the Group Members (as defined in the Third Amended Application) to enter into and give effect to the Settlement Agreement (as described in paragraph 4(a) below) and the covenants contained in that agreement. 4. Pursuant to sections 33V, 33ZF and 33ZJ of the Act, settlement of the proceedings upon the terms set out in: (a) the Settlement Agreement, being exhibits JMH-03, JMH-04 and JMH-05 to the Open Affidavit of James Michael Higgins dated 5 December 2012, and (b) the Settlement Distribution Scheme, being Exhibit JMH-17 to the Confidential Affidavit of James Michael Higgins dated 18 December 2012, (together "the Settlement") be approved. 5. Pursuant to section 33ZB and section 33ZF of the Act, the persons affected and bound by the Settlement and by these orders be the Applicant, the Respondent and the group members (as defined in the Third Amended Application). Settlement Distribution Scheme 6. Pursuant to section 33ZF of the Act, Slater & Gordon Limited (S&G) be appointed Administrators of the Settlement Distribution Scheme. 7. Pursuant to sections 33X and 33Y of the Act, the form and content of the notice being Exhibit JMH-08 to the Open Affidavit of James Michael Higgins dated 5 December 2012 informing group members of the orders referred to in paragraph 4 and 5above (the Notice) be approved. 8. The Notice be given to group members in the following way: (a) By 21 December 2012 the Applicant shall cause the Notice to be sent by pre-paid ordinary post and/or by email to the last known mailing or email addresses held by the Applicant's solicitors in respect of each group member; (b) by 21 December 2012 the Applicant's solicitors post a copy of the Notice on their website. Inter partes costs and security for costs 9. All costs orders made to date in the proceedings be vacated. 10. The amount of $1,000,000.00 lodged as security in the proceedings be released to the Applicant's solicitors, or as they direct. 11. There be no order as to costs as between the Applicant and the Respondent. 12. Pursuant to section 33ZF of the Act, the Applicant's expenses incurred for the purposes of determining common questions in the proceeding be approved in the sum of $27,762.63. 13. Each party, and S&G in its capacity as Scheme Administrators, have liberty to apply on not less than 3 clear business days' notice to each party to the proceeding, including any application for approval of Administration Costs. Adjournment 14. The Applicant have liberty to apply to re-list the proceeding as soon as practicable after completion of the distribution of the Settlement Sum (within the meaning of the Settlement Distribution Scheme) (and must in any event do so no later than thirty days after such completion) so that final orders can be made, including orders that the proceeding be dismissed without any order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011