IN THE FEDERAL COURT OF AUSTRALIA

Lindsey Schofield & Another v TFS Manufacturing Pty Ltd and Others (NSD 181 of 2020)

OPT OUT AND
CLAIMANT REGISTRATION NOTICE

THIS IS AN IMPORTANT NOTICE ISSUED BY ORDER OF THE FEDERAL COURT OF AUSTRALIA

This notice contains important information concerning: (a) your right to opt out of this class action, including a deadline for you to exercise this right should you wish to do so; and (b) for those group members who do not wish to opt out of this class action, the process for registering your claim for compensation (you are not obliged to register, however, it is requested that you register to assist with mediation of the class action). This notice sets out three options for you to take in relation to the class action:

  1. Register your claim for compensation. In order to assist the Applicant to participate in a mediation of the class action effectively, registration is requested by 29 October 2021.
  2. Complete an ‘opt out’ form on or 29 October 2021. By doing this you will lose any right to any compensation available in this class action, but you will not be prevented from starting your own proceeding to try and get compensation yourself (subject to applicable time limits).
  3. Do nothing. You will not lose any rights by choosing this option, however, declining to register at this time may adversely impact the Applicant’s ability to negotiate a settlement of this proceeding on behalf of the class at a mediation to commence later this year. If you do not register now and the class action is successful (by way of judgment or settlement), you will need to complete this registration process at a later date in order to claim compensation.

1. WHY IS THIS NOTICE IMPORTANT?

A class action has been commenced in the Federal Court of Australia by Lindsey Schofield and Melissa Weedon against TFS Manufacturing Pty Ltd, IVS Pty Ltd, Covidien Pty Limited, Peter Petros, MIPS Insurance Pty Ltd and Chubb Insurance Australia Limited. The action arises out of the implantation of vaginal mesh implants which, it is alleged, were defective and should not have been implanted or were implanted negligently.

The Federal Court has ordered that this notice be published for the information of persons who might be members of the class on whose behalf the action is brought and may be affected by the action. You have been identified as a potential class member. You should read this notice carefully. Any questions you have concerning the matters contained in this notice should not be directed to the Court. If there is anything in this notice that you do not understand, you should seek legal advice.

2. What is a class action?

A class action is an action that is brought by one or more people (“the Applicants”) on their own behalf and on behalf of a class of people (“class members”) against other persons (“the Respondents”) where the Applicants and the class members have similar claims against the Respondents.

Class members in a class action are not individually responsible for the legal costs associated with bringing the class action. In a class action, only the Applicants are responsible for the costs.

Class members are “bound” by the outcome in the class action, unless they have opted out of the proceeding. A binding result can happen in two ways, being either a judgment following a trial, or a settlement at any time. If there is a judgment or a settlement of a class action, class members will not be able pursue the same claims and may not be able to pursue similar or related claims against the respondent in other legal proceedings. Class members should note that:

  • in a judgment following trial, the Court will decide various factual and legal issues in respect of the claims made by the applicants and class members. Unless those decisions are successfully appealed they bind the applicants, class members and the respondents. Importantly, if there are other proceedings between a class member and one or more respondents, it may be that neither of them will be permitted to raise arguments in that proceeding which are inconsistent with a factual or legal issue decided in the class action.
  • In a settlement of a class action, where the settlement provides for compensation to class members it may extinguish all rights to compensation which a class member might have against the respondent which arise in any way out of the events or transactions which are the subject-matter of the class action.

If you consider that you have claims against a respondent which are based on your individual circumstances or otherwise additional to the claims described in the class action, then it is important that you seek independent legal advice about the potential binding effects of the class action before the deadline for opting out (see below).

3. What is this class action?

This class action, informally described as the TFS/IVS Vaginal Mesh Class Action, is brought by the Applicants, Lindsey Schofield and Melissa Weedon, on their own behalf and on behalf of all persons who are “class members” as defined in the proceeding. The term “group members” and “class members” means the same thing.

The Applicants allege in the Statement of Claim in Federal Court proceeding Lindsey Schofield & Another v TFS Manufacturing Pty Ltd and others (NSD 181 of 2020) that the Respondents variously designed, manufactured, evaluated, supplied, marketed, promoted, or implanted Tissue Fixation System Implants (TFS Implants) and the IVS Tunneller (IVS Implants and, collectively, the Implants).

The Applicants’ claim against TFS Manufacturing Pty Ltd, IVS Pty Ltd and Covidien Pty Limited is that the Implants were defective, not fit for a particular or disclosed purpose, not of merchantable quality and not of acceptable quality in contravention of the Trade Practices Act 1974 (Cth) and the Competition and Consumer Act 2010 (Cth). The Applicants also allege against these Respondents that they were negligent in their design, manufacture, marketing and supply of the Implants, in failing to give certain warnings in connection with the Implants, in their testing of the Implants, and in their post-market surveillance of the Implants.

In the case of the Fourth Respondent (Peter Petros), the Applicants allege that in respect of some class members, he performed the surgery to implant the Implants negligently and that he implanted the Implants despite his knowledge that their safety and efficacy had not been established. It is also alleged that he was negligent in the assistance, supervision and advice he provided to other surgeons who implanted the Implants in some class members.

The Applicants claim that they and class members suffered loss and harm as a result of the Respondents’ conduct in connection with the Implants and that they and class members are therefore entitled to damages.

MIPS Insurance Pty Ltd is the professional indemnity insurer for Peter Petros and has been joined to the proceeding to determine whether it is liable to indemnify Petros for any liability he may have to class members.

Chubb Insurance Australia Limited is the insurer of TFS Manufacturing Pty Ltd and is liable to indemnify TFS Manufacturing Pty Ltd for any liability it may have to class members. It has been joined to the proceeding because TFS Manufacturing Pty Ltd is being wound up.

The Respondents do not admit the allegations and are defending the class action.

4. What is ‘Opt Out’?

The Applicants in a class action do not need to seek the consent of class members to commence a class action on their behalf or to identify a specific class member.
However, class members can cease to be class members by opting out of the class action. An explanation of how class members are able to opt out is found below in the section headed “How can you opt out of the proceeding”.

5. Are you a class member?

You are a class member if:

  1. You underwent surgery in Australia; and,
  2. During that surgery, you were implanted with either a:
    1. Tissue Fixation System Implant; or,
    2. IVS Tunneller Implant.

If you are unsure whether or not you are a class member, you should contact AJB Stevens Lawyers on (02) 8268 0600 or email TFSandIVS@ajbstevens.com.au. Alternatively, you may seek legal advice from another firm. You should seek advice without delay.

6. Will you be liable for legal costs if you remain a class member?

You will not become liable for any legal costs simply by remaining as a class member for the determination of the common questions. However:

  • if the preparation or finalisation of your personal claim requires work to be done in relation to issues that are specific to your claim, you can engage AJB Stevens Lawyers or other lawyers to do that work for you. A copy of the terms on which AJB Stevens Lawyers are acting in the class action may be obtained from them on the number/s shown below;
  • if any compensation becomes payable to you as a result of any order, judgment or settlement in the class action, the Court may make an order that some of that compensation be used to help pay a share of the costs which are incurred by the Applicants in running the class action but which are not able to be recovered from the Respondents; and
  • class actions are often settled out of court. If this occurs in the class action, you may be able to claim from the settlement amount without retaining a lawyer.

7. What will happen if you choose to remain a class member?

Unless you opt out, you will be bound by any settlement or judgment of the class action. If the class action is successful you will be entitled to share in the benefit of any order, judgment or settlement in favour of the Applicants and class members, although you may have to satisfy certain conditions before your entitlement arises. If the action is unsuccessful or is not as successful as you might have wished, you will not be able pursue the same claims and may not be able to pursue related claims against one or more of the respondents in other legal proceedings.

8. What class members need to do

(a) How you can remain a class member?

If you wish to remain a class member there is nothing you need to do at the present time. The Applicants will continue to bring the proceeding on your behalf up to the point where the Court determines those questions that are common to the claims of the Applicants and the class members. However, you are invited to contact the Applicants’ lawyers, AJB Stevens Lawyers, on the number below and register as a class member so that future notices about the class action can be sent to your preferred address.

(b) How you can opt out of the class action?

If you do not wish to remain a class member you must opt out of the class action. If you opt out you will not be bound by or entitled to share in the benefit of any order, judgment or settlement in the class action, but you will be at liberty to bring your own claim against the respondent/s, provided that you issue Court proceedings within the time limit applicable to your claim. If you wish to bring your own claim against the respondent/s, you should seek your own legal advice about your claim and the applicable time limit prior to opting out.

If you wish to opt out of the class action you must do so by completing a “Notice of opting out by class member” – in the form shown below (Form 21 of the Court’s approved forms) – , then returning it to the Registrar of the Federal Court of Australia at the postal address on the form or electronically via email to pelvicmesh@fedcourt.gov.au (please include in the subject line the words “Opt Out Notice [TFS proceeding]”).

IMPORTANT: the Notice must reach the Registrar by no later than 4:30pm on 29 October 2021 otherwise it will not be effective.You should submit the Notice of opting out by class member if:
(i) you qualify as a class member and you wish to opt out of the class action; or
(ii) you believe that you have been incorrectly identified as a class member, because you do not meet the criteria set out in the section headed “Are you a class member” above.

Each class member seeking to opt out should fill out a separate form.

9. Limitation Period

Limitation periods are set by statute. If a person with an entitlement to a claim does not commence legal proceedings by the time a limitation period expires, they may be barred from making a claim.
The commencement of this class action suspended the limitation periods for all class members who have not opted out. Time starts to run again once a person opts out of the class action. If you opt out of the class action and the statutory time limit on your claim expires, or is found to have already expired because you are no longer covered by the class action, you will be barred from bringing proceedings against the respondents in Court. This will depend on your particular individual circumstances.
Again, if you wish to bring your own claim against the respondents in Court, you should seek your own legal advice about your claim and the applicable time limit prior to opting out.

10. Where can you obtain copies of relevant documents?

Copies of relevant documents, including the application, the statement of claim, and the defences, may be obtained by:

  • downloading them from AJB Stevens Lawyers’ website;
  • inspecting them between 9am and 5pm at one of the offices of AJB Stevens Lawyers, contact details for which are available from AJB Stevens Lawyers’ website or by calling (02) 8268 0600 or emailing TFSandIVS@ajbstevens.com.au;
  • by contacting a District Registry of the Federal Court (contact details are available at www.fedcourt.gov.au) and paying the appropriate inspection fee; or
  • where appropriate arrangements have been made with the Court, inspecting them on the Federal Court website at https://www.fedcourt.gov.au/.

Please consider the above matters carefully. If there is anything about which you are unsure, you should contact AJB Stevens Lawyers on (02) 8268 0600, email TFSandIVS@ajbstevens.com.au or seek your own legal advice. You should not delay in making your decision.