Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd (No 5) [2010] FCA 605

Applicant succeeded in establishing liability against first respondent under ss 74B and 74D of the Trade Practices Act 1974 (Cth) in respect of myocardial infarction associated with consumption of Vioxx, but not for other cardiovascular conditions or under negligence or s 75AD. Judgment sum awarded to applicant, but execution stayed for 28 days, with further stays possible upon payment into court and lodgement of appeal. Costs awarded to applicant with several exceptions relating to unsuccessful claims, specific causes/cost items, and joint representation. Application for Sanderson order rejected. Respondents required to pay costs for proof of certain facts after Notice to Admit. Orders...

Jurisdiction: Australia
Judgment Date: 18 June 2010
Procedural Posture: Representative Proceeding (class Action) / Post Trial, Orders Following Published Reasons, Costs and Stay Applications
Outcome: Judgment for applicant on personal claim under ss 74B and 74D of Trade Practices Act 1974 (Cth) against first respondent. Execution stayed 28 days (with further stay possible). Applicant's other claims (negligence, s 75AD, claims for other conditions) dismissed. Claims of group members not involving myocardial...
Legal Topics: ['stay of Execution Pending Appeal' 'costs in Representative Proceedings' 'misleading or Deceptive Conduct Under Trade Practices Act' 'product Safety and Fitness for Purpose' 'notice to Admit and Costs Consequences' 'sanderson Orders' 'merchantable Quality and Fitness for Purpose Under Trade Practices Act']

['practice and Procedure' 'consumer Law' 'product Liability' 'negligence'] ['stay of Execution Pending Appeal' 'costs in Representative Proceedings' 'misleading or Deceptive Conduct Under Trade Practices Act' 'product Safety and Fitness for Purpose' 'notice to Admit and Costs Consequences' 'sanderson Orders' 'merchantable Quality and Fitness for Purpose Under Trade Practices Act']

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Procedural Posture

Representative Proceeding (class Action) / Post Trial, Orders Following Published Reasons, Costs and Stay Applications

Legal Issues

1 ['Whether court should grant stay of judgment pending appeal' 'Entitlement and qualification to costs in representative actions' "Whether respondents should pay applicant's costs for proof of facts set out in Notices to Admit" 'Whether a Sanderson order transferring costs liability between respondents is appropriate' 'Misleading or deceptive conduct in breach of section 52 of the Trade Practices Act 1974 (Cth)' 'Product safety, fitness for purpose and merchantable quality under ss 74B, 74D, 75AD, 82 of the Trade Practices Act 1974 (Cth)' 'Duty of care, standard of care, and adequacy of information or warnings regarding Vioxx']

Ratio Decidendi

Court Disposition

Judgment for applicant on personal claim under ss 74B and 74D of Trade Practices Act 1974 (Cth) against first respondent. Execution stayed 28 days (with further stay possible). Applicant's other claims (negligence, s 75AD, claims for other conditions) dismissed. Claims of group members not involving myocardial...

Orders

['Judgment for applicant against first respondent for $330,465.35 under ss 74B and 74D of the Trade Practices Act 1974 (Cth)' 'Execution stayed for 28 days; possible further stay upon conditions (payment into court and appeal lodgement)' "Applicant's other claims against first respondent dismissed" 'Claims of group...