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Key decisions

  • Gill and Ors v Ethicon Sàrl and Ors; Talbot v Ethicon Sàrl and Ors (No 10) [2023] FCA 228
  • Gill and Ors v Ethicon Sàrl and Ors; Talbot v Ethicon Sàrl and Ors (No 11) [2023] FCA 229

CLASS ACTIONS

Approval of settlement – administration of approved settlement – appointment of administrator put out to tender

Gill and Ors v Ethicon Sàrl and Ors; Talbot v Ethicon Sàrl and Ors (No 10) [2023] FCA 228 (Lee J) and Gill and Ors v Ethicon Sàrl and Ors; Talbot v Ethicon Sàrl and Ors (No 11) [2023] FCA 229 (Lee J)

In a pair of recent decisions, Gill and Ors v Ethicon Sàrl and Ors; Talbot v Ethicon Sàrl and Ors (No 10) [2023] FCA 228 (‘Ethicon No 10’) and Gill and Ors v Ethicon Sàrl and Ors; Talbot v Ethicon Sàrl and Ors (No 11) [2023] FCA 229 (‘Ethicon No 11’) (both judgments were handed down on 16 March 2023), the Federal Court of Australia has adopted a new approach to the approval and administration of settlements in class action proceedings. The Court has bifurcated the questions of approval of the settlement and appointment of a settlement administrator, such that the latter question may be the subject of a competitive tender process rather than automatically handled by the same applicants’ solicitors as ran the matter to the point of settlement approval.

Facts and procedural history

The proceedings were a long-running class action. The Gill proceeding originally commenced in 2012 and the Talbot proceeding commenced in 2021. Both proceedings were eventually co-heard. Both the Gill Proceeding and the Talbot Proceeding sought damages for women who had allegedly suffered complications arising from the implantation of pelvic ‘mesh’ implants manufactured by the respondents (collectively, ‘Ethicon’); the distinction between the two proceedings was the cut-off date by which a group member had suffered a complication. The implants were designed to alleviate pelvic organ prolapse and stress urinary incontinence. In each proceeding, the applicant alleged that Ethicon:

  1. had been negligent in their evaluation of the pelvic mesh implants before release to the market, negligent in their evaluation of them after release, and negligent in failing to warn of the risk of complications; and
  2. had contravened statutory provisions relating to goods which are defective, not fit for purpose and/or not of merchantable/acceptable quality; and
  3. had engaged in misleading or deceptive conduct in the marketing and supply of the implants.

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