Hamilton v Merck and Co Inc; Hutchinson v Merck Sharp and Dohme (Australia) Pty Ltd [2006] NSWCA 55
HEARING DATE(S):
22 November 2005
JUDGMENT DATE:
30 March 2006
JUDGMENT OF:
Spigelman CJ at 1; Handley JA at 107; Tobias JA at 165
DECISION:
1. Question 1 answered no.; 2. Question 2 does not arise.; 3. The defendants to pay the plaintiffs’ costs of the stated cases and two-thirds of the costs of the hearing in this Court.; 4. Order on the notice of motion of 9 September 2005 in matter No 40575 of 2005 in this Court that the plaintiff have leave to file and serve an amended statement of claim incorporating the original statement of claim and in the alternative the proposed amended statement of claim annexed to the notice of motion.; 5. Such amendment is to take effect on and from 9 September 2005.; 6. The plaintiff is to file and serve the amended statement of claim within 28 days.; 7. The costs of the motion and the costs occasioned by the amendment and one-sixth of the costs of the hearing in this Court to abide the order of the trial Judge.; 8. Order on the notice of motion of 9 September 2005 in matter No 40576 of 2005 in this Court that the plaintiff have leave to file and serve an amended statement of claim incorporating the original statement of claim and in the alternative the proposed amended statement of claim annexed to the notice of motion.; 9. Such amendment is to take effect on and from 9 September 2005.; 10. The plaintiff is to file and serve the amended statement of claim within 28 days.; 11. The costs of the motion and the costs occasioned by the amendment and one-sixth of the costs of the hearing in this Court to abide the order of the trial Judge.; 12. Both actions remitted to the Common Law Division.
CATCHWORDS:
FEDERAL JURISDICTION – tort committed in Queensland – action in New South Wales – whether provisions of Queensland Act procedural or substantive - PRIVATE INTERNATIONAL LAW – tort committed in Queensland – action in New South Wales – whether provisions of Queensland Act procedural or substantive - PRIVATE INTERNATIONAL LAW – distinction between substance and procedure – determined by law of forum – provisions which do not prevent cause of action accruing and time running procedural - D
Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136 Aydar v Pashen [2003] 1 Qd R 601 Baldry v Jackson [1976] 2 NSWLR 415 Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 610 Bonser v Melnacis [2002] 1 Qd R 1 Cameron v National Mutual Life Association of Australasia [No 2] [1992] 1 Qd R 133 Chisholm v Pasminco Metals – BHAS…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hamilton v Merck & Co Inc [2006] NSWCA 55
Case
[2006] NSWCA 55
Decision Date
CaseChat Overview and Summary
The case of Hamilton v Merck & Co Inc was heard in the Court of Appeal of New South Wales, with Spigelman CJ, Handley and Tobias JJA presiding. The dispute concerned an action brought in New South Wales for a tort allegedly committed in Queensland. The central issue revolved around the application of Queensland legislation to the proceedings.
The legal issues before the court were whether certain provisions of a Queensland Act were procedural or substantive in nature, and consequently, whether they applied to an action commenced in New South Wales for a tort occurring in Queensland. This required the court to consider the principles of private international law, specifically the distinction between substance and procedure in determining the governing law for such claims.
The court reasoned that the distinction between substance and procedure is determined by the law of the forum, which in this instance was New South Wales. Provisions that do not prevent a cause of action from accruing or time from running are generally considered procedural. The court answered the primary question posed in the stated case in the negative, indicating that the Queensland provisions in question were not to be applied.
The court made several orders, including answering the first question in the negative and deeming the second question as not arising. The defendants were ordered to pay the plaintiffs' costs of the stated cases and two-thirds of the costs of the hearing in the Court of Appeal. Further orders granted the plaintiff leave to file and serve amended statements of claim, with the costs of these motions and amendments to abide the order of the trial judge. Both actions were remitted to the Common Law Division.
Orders
Orders of the court
1. Question 1 answered no.; 2. Question 2 does not arise.; 3. The defendants to pay the plaintiffs’ costs of the stated cases and two-thirds of the costs of the hearing in this Court.; 4. Order on the notice of motion of 9 September 2005 in matter No 40575 of 2005 in this Court that the plaintiff have leave to file and serve an amended statement of claim incorporating the original statement of claim and in the alternative the proposed amended statement of claim annexed to the notice of motion.; 5. Such amendment is to take effect on and from 9 September 2005.; 6. The plaintiff is to file and serve the amended statement of claim within 28 days.; 7. The costs of the motion and the costs occasioned by the amendment and one-sixth of the costs of the hearing in this Court to abide the order of the trial Judge.; 8. Order on the notice of motion of 9 September 2005 in matter No 40576 of 2005 in this Court that the plaintiff have leave to file and serve an amended statement of claim incorporating the original statement of claim and in the alternative the proposed amended statement of claim annexed to the notice of motion.; 9. Such amendment is to take effect on and from 9 September 2005.; 10. The plaintiff is to file and serve the amended statement of claim within 28 days.; 11. The costs of the motion and the costs occasioned by the amendment and one-sixth of the costs of the hearing in this Court to abide the order of the trial Judge.; 12. Both actions remitted to the Common Law Division.