Notable Judgments
Roundup
In July 2024, Lee J ordered that the class action against Monsanto’s "Roundup" weed killer be dismissed on the basis that it was not proven that use of and exposure to Roundup products causes cancer.
The class that contained 800 members, led by Kevin McNickle and represented by Maurice Blackburn, alleged that the weed killer caused Non-Hodgkin lymphoma (NHL) and brought claims against Monsanto for breaches of the Australian Consumer Law and negligence. Monsanto denied the allegations.
Between September 2023 and January 2024, the Court heard an initial trial on causation, with a view to determining whether the use of Roundup products could increase an individual’s risk of developing NHL. The trial focussed on expert evidence in the areas of epidemiology, toxicology, cancer biology and exposure science.
Although His Honour found that none of the streams of expert evidence supported a conclusion that exposure to Roundup increased the risk of developing NHL, Lee J noted that the epidemiologic studies weighed particularly heavily against finding a causative link. His Honour observed that epidemiology, which is the science of how and why disease spreads in people, was of more assistance to the Court than the other streams of evidence, such as animal studies in which rats and mice were fed high doses of the chemical and then examined for tumour development. The most sophisticated of the epidemiology studies, which followed tens of thousands of farmers in the United States over a period of 25 years, found no association between Roundup use and risk of NHL.
Despite His Honour’s finding in this proceeding, he noted the possibility that future research may reveal a "compelling link", leaving the door option for potential future cases.
NAB/NULIS
On 2 December 2024, Justice Brigitte Markovic found for NULIS Nominees (Australia) Limited (NULIS) in its capacity as trustee of the MLC Super Fund (Fund) in a class action led by Mervyn Lawrence Brady (Brady) alleging payment of fees for no services. The decision is the first class action decision to consider superannuation trustee compliance. NAB is the ultimate holding company of NULIS.
Brady asserted three broad categories of allegations. First, NULIS lacked power to charge fees insofar as they represented revenue to it and thereby the pool of funds to pay commissions. Secondly, NULIS breached its duties as trustee when it made two decisions, being the decision to: (a) charge members of the Fund fees to fund commissions to financial services licensees (FSLs) following the transfer from the predecessor super fund to the Fund, and (b) bind itself (by way of Licensee Remuneration Agreement) to pay the commissions (set out in (a)) from the date the predecessor fund became the Fund. Thirdly, NULIS breached s 963K of the Corporations Act (conflicted remuneration) by paying commissions after 1 July 2016 when the charging of fees to fund the payment of those commissions was a breach of the Trust Deed because those fees were not for the “administration and operation” of the Fund.
Justice Markovic dismissed each of the claims and also held that discretionary decisions of a superannuation trustee would only be examined or reviewed by a court for the purpose of determining whether the discretion has been exercised in good faith, upon real and genuine consideration and in accordance with the purposes for which the discretion was conferred.
Bayer/Essure
On 10 December 2024, the Supreme Court of Victoria found for Bayer Australia Ltd and associated entities (Bayer) in a class action led by Patrice Turner alleging that Essure contraceptive devices (owned by Bayer) had defects which caused chronic inflammation. Bayer denied that Essure devices were defective, and Keogh J agreed, concluding that the biostatistical evidence weighed heavily against causation and presented a significant barrier to proving general causation.
Turner relied on histological and corrosion studies to demonstrate that the corrosion of Essure devices in vivo caused chronic pelvic pain and abnormal uterine bleeding. However, the epidemiological evidence was “far from compelling” and the demonstrated risk that Essure devices could migrate from the fallopian tube, corrode or leach metals into the body was small and associated with the removal and placement of the device. Justice Keogh noted that the quantifications of risk expressed by one of the experts relied on by Turner were devoid of reasoning from any quantitative evidence making the expression of the opinion meaningless.
Beyond the allegations of defectiveness, Turner alleged that Essure devices were not of merchantable quality. The evidence presented before Keogh J established that there were risks of harm associated with every contraceptive choice, and the risks were the subject of adequate warnings by Bayer. His Honour also went on to say that “the mere fact that a device may fail or cause harm is insufficient to establish that it is not of merchantable quality.”
Queensland Energy
In December 2024, Derrington J dismissed a class action brought by Applicant, Stillwater Pastoral Company Pty Ltd on behalf of Queensland energy consumers that alleged the Respondents, Stanwell Corporation Ltd (Stanwell) and CS Energy Ltd (CS Energy) (together, the Respondents), engaged in a trading strategy of "Short-notice Rebidding" in the National Energy Market which was in contravention of section 46 of the Competition and Consumer Act.
The Respondents submitted their rebidding was in legitimate pursuit of commercial interests which was permitted under the National Electricity Rules, and they were not in breach of the Competition and Consumer Act. When considering the evidence before her, Justice Derrington determined that the Respondents did not have a substantial degree of market power and as a result, their ability to profitably raise prices above competitive levels was constrained by competition from other generators and the threat of new entry to the market.
Beyond this, even if the Respondents were shown to have a substantial degree of market power, Justice Derrington said she would have dismissed the case because it had not been established by the Applicant that the Respondents took advantage of their power. This is despite evidence that the Respondents had hoped to cause price spikes so as to improve their price volume trade-offs. However, hope is not evidence of intention or expectation, and neither of the Respondents were found to have insight into the other Respondent’s (or another generator’s) incentives for responding to a high-priced rebid.
On 12 December 2024, the time for which any appeal can be made was extended to 28 February 2025. The next hearing is set down for 20 March 2025.
Wotton Kearney acknowledges the traditional custodians of the lands on which we work, and pay our respects to Elders past and present.
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