Legal Research
Cases
Merck Sharp & Dohme (Australia) Pty Ltd v Peterson

Merck Sharp & Dohme (Australia) Pty Ltd v Peterson

Link copied

Case Copied 11 March 2009 12 min read

Contents

On this page

FEDERAL COURT OF AUSTRALIA
Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26
Federal Court of Australia Act 1976 (Cth) ss 33N, 33ZF
Courtney v Medtel Pty Ltd (2003) 126 FCR 219 cited
MERCK SHARP & DOHME (AUSTRALIA) PTY LTD (ACN 000 173 508) and MERCK & CO., INC v GRAEME ROBERT PETERSON
VID 24 of 2009
MOORE, SUNDBERG AND TRACEY JJ
11 MARCH 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 24 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MERCK SHARP & DOHME (AUSTRALIA) PTY LTD
(ACN 000 173 508)
First Appellant

MERCK & CO., INC
Second Appellant

AND:
GRAEME ROBERT PETERSON
Respondent

JUDGES:

MOORE, SUNDBERG AND TRACEY JJ

DATE OF ORDER:

11 MARCH 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The appeal from the trial judge’s order of 5 December 2008 in so far as it dismissed the claim for relief sought in paragraph 2 of the motion notice of which was filed on 24 November 2008 (the relief sought) be allowed.
2.The order of 5 December 2008 be set aside in so far as it relates to the relief sought.
3.The relief sought be remitted to the trial judge for further hearing.
4.Costs of the application for leave to appeal and of the appeal be costs in the cause.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 24 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MERCK SHARP & DOHME (AUSTRALIA) PTY LTD
(ACN 000 173 508)
First Appellant

MERCK & CO., INC
Second Appellant

AND:
GRAEME ROBERT PETERSON
Respondent

JUDGES:

MOORE, SUNDBERG AND TRACEY JJ

DATE:

11 MARCH 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Representative proceedings have been commenced by Mr Graeme Peterson against Merck Sharp & Dohme (Australia) Pty Ltd (“Merck”) and what we understand to be its parent company incorporated in the United States of America. In these reasons it is only necessary to refer to Merck. The matter is listed for “trial” commencing on 30 March 2009. The trial judge has set aside approximately 3 months for that purpose. In late November 2008, Merck filed a notice of motion seeking orders to the following effect. The first was an order pursuant to s 33N of the Federal Court of Australia Act 1976 (Cth) that the proceeding no longer continue as a representative proceeding. Alternatively, Merck sought an order under s 33ZF of the Federal Court Act, requiring Mr Peterson to specify “each of the matters that the Court is being invited to determine for all alleged group members through a trial of the Applicant’s claim”.
Merck’s notice of motion was dismissed. It has sought leave to appeal against its dismissal in relation to both the order…

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.

Keep reading for free

Create a free CaseChat account to read Merck Sharp & Dohme (Australia) Pty Ltd v Peterson and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] FCAFC 26
Decision Date: 11 March 2009

CaseChat Overview and Summary

Merck Sharp & Dohme (Australia) Pty Ltd, a pharmaceutical company, appealed against a decision of the trial judge in the Federal Court of Australia. The pharmaceutical company brought an action against Ms. Peterson, a former employee, seeking to enforce certain post-employment restraints. The primary issue was whether the trial judge had correctly exercised his discretion in dismissing the company’s claim for certain post-employment restraints, including a non-compete clause, and whether the court should have ordered a further hearing on the matter.

The court needed to determine whether the trial judge had properly exercised his discretion when dismissing the company’s claim for certain post-employment restraints, including a non-compete clause. The court also needed to consider whether the relief sought by the company was reasonable and necessary to protect the company’s legitimate business interests. Furthermore, the court had to decide whether the trial judge had appropriately considered the relevant legal principles and factors when dismissing the company’s claim.

The court found that the trial judge had not properly exercised his discretion when dismissing the company’s claim for certain post-employment restraints. The court held that the trial judge had failed to consider the relevant legal principles and factors, including the nature of the restraints, the duration of the restraints, and the company’s legitimate business interests. The court also found that the trial judge had not adequately considered the evidence before him, particularly in relation to the company’s need for protection against the misuse of confidential information and the potential harm to the company’s business. The court concluded that the trial judge had erred in law and that the appeal should be allowed. The court remitted the relief sought to the trial judge for further hearing to allow for a proper exercise of the court’s discretion. The court also ordered that the costs of the application for leave to appeal and of the appeal be costs in the cause.

Orders

Orders of the court

1. The appeal from the trial judge’s order of 5 December 2008 in so far as it dismissed the claim for relief sought in paragraph 2 of the motion notice of which was filed on 24 November 2008 (the relief sought) be allowed.

2. The order of 5 December 2008 be set aside in so far as it relates to the relief sought.

3. The relief sought be remitted to the trial judge for further hearing.

4. Costs of the application for leave to appeal and of the appeal be costs in the cause.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MOORE, SUNDBERG AND TRACEY JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MOORE, SUNDBERG AND TRACEY JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 24 of 2009

JUDGES:	MOORE, SUNDBERG AND TRACEY JJ
DATE OF ORDER:	11 MARCH 2009
WHERE MADE:	MELBOURNE

JUDGES:	MOORE, SUNDBERG AND TRACEY JJ
DATE:	11 MARCH 2009
PLACE:	MELBOURNE