Supreme Court New South Wales Medium Neutral Citation: Pharm-A-Care Laboratories Pty Limited v Commonwealth of Australia [2011] NSWSC 277 Hearing dates: 5 April 2011 Decision date: 05 April 2011 Jurisdiction: Common Law Before: Price J Decision: Catchwords: PRACTICE AND PROCEDURE - representative proceedings - settlement approved in Federal Court of Australia - substantially the same proceedings in the Supreme Court - transitional provisions - requirement for approval of settlement dispensed with Legislation Cited: Civil Procedure Act 2005 Federal Court of Australia Act 1976 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 6) [2011] FCA 277 Category: Procedural and other rulings Parties: Pharm-a-Care Laboratories Pty Limited (Plaintiff) Commonwealth of Australia (First Defendant) Terry Slater (Second Defendant) Rita Maclachlan (Third Defendant) Pio Cesarin (Fourth Defendant) Robert Tribe (Fifth Defendant) Noel Fraser (Sixth Defendant) Representation: Counsel: Mr D Barnett (Plaintiff) Mr M Cessario, solicitor (First Defendant) Mr R Hollo (Second Defendant - Sixth Defendant) Solicitors: McLachlan Thorpe Partners (Plaintiff) Corrs Chambers Westgarth (First Defendant) Moray & Agnew (Second Defendant - Sixth Defendant) File Number(s): 2009/297557 Judgment (ex tempore) 1This is an application by the plaintiff pursuant to cl 18(3) sch 6 Civil Procedure Act 2005 (the CPA) that the requirements of Pt 10 of the CPA be dispensed with. 2Very shortly stated, representative proceedings were commenced by the plaintiff on or about 23 December 2008 in the Federal Court of Australia against the Commonwealth of Australia and five individual respondents in respect of action taken by the Therapeutic Goods Administration (TGA) against Pan Pharmaceuticals Limited (Pan) in April 2003. The proceedings in the Federal Court involved 161 members. 3On or about 24 April 2009, the plaintiff commenced the present proceedings in this court on behalf of a representative class under Uniform Civil Procedure Rules 2005 (UCPR) r 7.4 (repealed 4 March 2011). The proceedings involved the same named parties and concerned the same facts, conduct and causes of action as the Federal Court proceeding. However, there were nine additional members in the Supreme Court proceedings who were not group members of the Federal Court proceeding. 4From 15 to 17 November 2010, the parties participated in mediation of the Federal Court proceedings and these proceedings, before the Honourable Roger Giles AO QC. Pursuant to s 33V Federal Court of Australia Act 1976 (Cth), settlement of a representative proceeding in the Federal Court required approval of that Court, whereas, at that time, settlement of representative proceedings in the Supreme Court did not require the approval of this Court. 5During the mediation, an agreement to settle the claims in both proceedings was reached and on or about 23 November 2010, the parties executed a Deed of Settlement. The Deed referred to distribution of the settlement monies in accordance with a Settlement Distribution Scheme. 6Pursuant to s 33X(4) of the Federal Court of Australia Act (Cth), the plaintiff on 3 December 2010, filed an application with the Federal Court for approval of the Notice to be sent to the group members in relation to the proposed settlement. The notice application was heard by Flick J on 16, 20 and 21 December 2010 and his Honour approved the notices to be sent to group members. 7Ultimately, Flick J heard an application for approval of the settlement on 3 March 2010, and his Honour delivered judgment on 21 March 2011. His Honour, in a carefully considered judgment, approved the settlement and the Settlement Distribution Scheme: Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 6) [2011] FCA 277. 8The application before me is to dispense with the requirement for approval of the settlement under s 173 of the CPA. As I indicated, at the time of the mediated settlement, there was no requirement for approval to be given by this Court. Part 10, which includes s 173, was introduced into the CPA on 4 March 2011 and requires that representative proceedings may not be settled or discontinued without the approval of this Court. 9However, the savings, transitional and other provisions contained in Schedule 6 of the CPA provide in Pt 5.18.3 that the Court "may make such orders dispensing with or modifying the requirements of the new Part in relation to proceedings referred to in subclause 2 as the relevant court thinks appropriate or necessary to ensure that justice is done in the proceedings". 10I propose to grant the order sought, namely, that the requirements of Pt 10 of the CPA be dispensed with, so that approval of this court is not required. I do so for the following reasons; (i)The proceedings in this Court were initiated in view of what was perceived, might have been an objection to the jurisdiction of the Federal Court. There is a substantial overlap between the Federal Court proceedings and the proceedings in this Court, the only difference being that there are nine additional members in the representative proceedings in this Court; (ii)It is evident that a very rigorous process was undertaken in the Federal Court to obtain the approval by Flick J of the settlement; (iii)All group members have been notified. Without detailing here the notification process, I refer in particular to the notification of the nine members who were not the subject of the Federal Court proceedings, which is set out in the affidavit of Bruce Thorpe sworn 4 April 2011 and annexures (ex A); (iv)I take into account, as Flick J did, that the settlement was reached before a most experienced mediator, the Honourable Roger Giles AO QC; (v)I also take into account that Pt 10 did not come into operation until after the mediation and the settlement, and; (vi)All parties consent to the requirements of Pt 10 being dispensed with and the orders proposed. 11In my view, it is appropriate in order to ensure that justice is done in the present proceedings that the requirements of Pt 10 be dispensed with. I should add that there has been no objection by any of the nine additional members to the proposed settlement. 12By consent the Court orders as follows: 1. Pursuant to cl 18(3) of sch 6 of the Civil Procedure Act 2005, the requirements of Pt 10 of the Act be dispensed with; 2. The proceedings be dismissed on the basis that the plaintiff and/or the represented parties shall not claim in any subsequent proceedings in this or any other court any relief in respect of the same causes of action the subject of these proceedings or any other cause of action that could properly have been brought in these proceedings; 3. The existing costs orders in the proceedings be vacated; 4. There be no order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2011