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This judgment concerned the identification of the issues to be determined at the initial trial of the proceeding, which is scheduled to commence on 29 November 2021. The respondent had initially contended that there were no ‘common’ issues, and on that basis had sought to ‘de-class’ the proceeding under s 33N of the Federal Court of Australia Act 1976 (Cth). However, it did not press that application following a case management hearing which clarified how the applicant put his case, which then facilitated the identification of what were truly ‘common’ issues. Ultimately, Mortimer J ordered that the issues to be determined were: (i) the issues of fact and law in the claims brought by the applicant and his family; and (ii) the issues of fact and law set out in a schedule to the orders “insofar as the Court finds them, at judgment, to be common to the claims of the group members”. Whilst the precise detail of the ‘common’ issues is not relevant for present purposes, her Honour did reiterate the applicable principles relating to Merck orders, which warrant repeating.

Her Honour began by noting (at [11]):

The practice of the Court of identifying common questions ahead of trial, so that at trial orders can be made answering those questions and so binding all group members to the answers, is a matter adverted to in the Court’s Class Actions Practice Note (GPN-CA) at 9.2(i). However, like any other orders, the Court must be satisfied such orders are appropriate in the circumstances of a particular proceeding.

Her Honour (at [12]-[29]) then traced through the history of the Merck litigation (from which the term ‘Merck orders’ derives), and particularly the Full Court decision in that case (Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2009) 355 ALR 20; [2009] FCAFC 26), in which the Full Court noted:

  • the fact a matter is a representative proceeding needs to be accommodated in the way the initial trial proceeds, even if its principal focus is on the claim of the lead applicant;
  • even where there is a controversy about which issues of fact and law are ‘common’, the Court should, in the ordinary course (at least in relation to proceedings involving a sizable class where liability may depend on each member’s individual circumstances), initially deal with issues that are common to all members of the representative class or a sub-class of that class;
  • an advantage of such a process is, if the common issues are framed as questions, and answers are given in the orders, an affected party can appeal from them;
  • common questions will provide a ‘touchstone’ for rulings in relation to evidence during the initial trial, where the pleadings may not, especially if the pleadings raise issues relevant to class members other than the lead applicant, which would not be part of the trial; and
  • it was appropriate to have a ‘preliminary question’, to be determined after the initial trial, as to whether any of the so-called common issues were in fact common.

Having set out that background, her Honour then turned (at [36]ff) to a consideration and identification of the issues that were ‘common’ in this proceeding (the precise details of which, as noted above, are not material for present purposes, save to note her Honour’s concluding remark (at [77]) that “the making of these orders do not preclude the parties during the trial, and on the basis of the evidence as it has been adduced, proposing that there are additional questions which should be added”).

DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia (No 2) [2021] FCA 556

Federal Court of Australia, Mortimer J,
26 May 2021

Applicant’s Solicitors: Maurice Blackburn;
Respondent’s Solicitors: Australian Government Solicitor;
Applicant’s Funder: N/A

Austlii Link: Accessible here

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