Peterson v Merck Sharpe & Dohme (Australia) Pty Ltd [2006] FCA 875

Peterson v Merck Sharpe & Dohme (Australia) Pty Ltd [2006] FCA 875

The proposed Application and Amended Statement of Claim were not shown to be deficient under s 33H or embarrassing in the respects alleged, except that the applicant was required to provide particulars of the word "safe" in paragraph 46 and remove the inconsistency between allegations that consumption of rofecoxib "could materially increase the risk" and that it "materially increased the risk". The respondents' remaining objections were dismissed.

Jurisdiction
Australia
Judgment Date
06 July 2006
Procedural Posture
Group Proceeding Alleging Negligence and Claims Under the Trade Practices Act 1974 (cth) Concerning Vioxx Tablets / Interlocutory Directions Hearing on Respondents' Objections to the Proposed Originating Application and Amended Statement of Claim
Outcome
Leave granted to file the Application and Amended Statement of Claim subject to specified amendments; respondents' other objections dismissed; procedural directions made; costs reserved.
Legal Topics
['section 33 H Group Definition' 'pleadings Said to Be Embarrassing' 'negligence' 'misleading or Deceptive Conduct' 'defective Goods' 'fitness for Purpose' 'merchantable Quality' 'failure to Warn' 'product Recall']
['civil Procedure' 'representative Proceedings' 'tort Law' 'consumer Protection' 'product Liability'] ['section 33 H Group Definition' 'pleadings Said to Be Embarrassing' 'negligence' 'misleading or Deceptive Conduct' 'defective Goods' 'fitness for Purpose' 'merchantable Quality' 'failure to Warn' 'product Recall']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Group Proceeding Alleging Negligence and Claims Under the Trade Practices Act 1974 (cth) Concerning Vioxx Tablets / Interlocutory Directions Hearing on Respondents' Objections to the Proposed Originating Application and Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the proposed originating Application and Amended Statement of Claim sufficiently described or identified group members for s 33H of the Federal Court of Australia Act 1976 (Cth)' 'Whether the use of 30 June 1999 in the group definition caused non-compliance with s 33H(1)' 'Whether the group definition was deficient because it could include persons no longer in Australia or casual visitors to Australia' 'Whether requiring diagnosis in the group definition but not in substantive allegations created embarrassing disconformity' 'Whether inconsistent formulations that consumption of rofecoxib "could materially increase the risk" and "materially increased the risk" required amendment' 'Whether allegations of failure to provide information, advice or warning were embarrassing because they did not specify the content of an adequate warning' 'Whether the applicant had to plead what he, his general practitioner, pharmacist or other health professional would have done if adequate warning had been given' "Whether alternative allegations concerning the first respondent's conduct were embarrassing in a group proceeding" 'Whether allegations about failure to withdraw or recall Vioxx had to plead the exact date when withdrawal or recall should have occurred' 'Whether the word "safe" in paragraph 46 required particulars']

Ratio Decidendi

The proposed Application and Amended Statement of Claim were not shown to be deficient under s 33H or embarrassing in the respects alleged, except that the applicant was required to provide particulars of the word "safe" in paragraph 46 and remove the inconsistency between allegations that consumption of rofecoxib "could materially increase the risk" and that it "materially increased the risk". The respondents' remaining objections were dismissed.

Court Disposition

Leave granted to file the Application and Amended Statement of Claim subject to specified amendments; respondents' other objections dismissed; procedural directions made; costs reserved.

Orders

  • ['The Applicant have leave to file and serve on or before 7 July 2006 an Application in the form filed on 3 July 2006.' 'On and from the date it is filed, the Application referred to in the previous order stand as the originating process herein.' 'Subject to the next succeeding order, the Applicant have leave to...