Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26

Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26

It is desirable, if not necessary, for the court in representative proceedings to identify precisely what issues are to be determined at trial, including common issues, through appropriate orders; the trial judge erred in refusing to exercise power under s 33ZF to require specification of such issues—accordingly, the appeal on this ground was allowed and the matter remitted for further hearing.

Parties
First Appellant: Merck Sharp & Dohme (Australia) Pty Ltd; Second Appellant: Merck & Co., Inc; Respondent: Graeme Robert Peterson
Jurisdiction
Australia
Judgment Date
11 March 2009
Procedural Posture
Appeal / On Appeal From a Single Judge of the Federal Court of Australia
Outcome
appeal allowed in part
Legal Topics
Representative Proceedings, Case Management, Identification of Common Issues
Civil Procedure Representative Proceedings Case Management Identification of Common Issues

Case Brief

Summary, issues, holding and outcome

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Parties

Merck Sharp & Dohme (Australia) Pty Ltd

First Appellant

Merck & Co., Inc

Second Appellant

Graeme Robert Peterson

Respondent

Procedural Posture

Appeal / On Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 Whether the trial judge erred in refusing to order the applicant to specify the matters to be determined at trial under s 33ZF of the Federal Court of Australia Act 1976 (Cth)
  2. 2 Appropriateness of structuring the trial by identifying common issues for determination in representative proceedings

Ratio Decidendi

It is desirable, if not necessary, for the court in representative proceedings to identify precisely what issues are to be determined at trial, including common issues, through appropriate orders; the trial judge erred in refusing to exercise power under s 33ZF to require specification of such issues—accordingly, the appeal on this ground was allowed and the matter remitted for further hearing.

Court Disposition

appeal allowed in part

Orders

  • The appeal from the trial judge's order of 5 December 2008 insofar as it dismissed the claim for relief sought in paragraph 2 of the motion notice filed on 24 November 2008 be allowed.
  • The order of 5 December 2008 be set aside insofar as it relates to the relief sought.