Hamilton v Merck & Co Inc

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.