Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd (No 5)

Peterson sued Merck Sharpe & Dohme (Aust) Pty Ltd (Merck Australia) and Merck & Co Inc (Merck Inc) over the alleged failure to warn of the cardiovascular risks associated with Vioxx, a painkiller. The case was a representative proceeding, with Peterson as the representative plaintiff. The dispute reached the Federal Court of Australia, which needed to address several issues concerning the stay of execution, costs, and the substantive allegations against the respondents. The court had to determine whether the applicant's entitlement to the fruits of the judgment could be sufficiently protected to justify a stay of execution pending appeal. It also needed to assess whether the applicant was entitled to costs generally, and if so, whether those costs should be taxed immediately or deferred until the appeal was concluded. Additionally, the court had to decide whether the respondents should bear the costs associated with the applicant's proof of facts set out in Notices to Admit, and whether the applicant should be responsible for the second respondent's costs under a Sanderson order.

The Federal Court of Australia granted Peterson judgment against Merck Australia for his claims under sections 74B and 74D of the Trade Practices Act 1974 (Cth), in the amount of $330,465.35. The execution of this judgment was stayed for 28 days. The stay could be extended pending the hearing and determination of an appeal or application for leave to appeal filed by Merck Australia within the specified period. The court dismissed Peterson's claims against Merck Australia for negligence and under sections 75AD and 82 of the Trade Practices Act 1974 (Cth). It also dismissed the claims against Merck Inc and determined specific issues as set out in the Schedule to the orders. The court ordered that Peterson was to receive costs from Merck Australia, subject to certain exclusions, and that Peterson would pay Merck Australia's costs relating to specific allegations. Peterson was also ordered to pay Merck Inc's costs, subject to exclusions. The court reserved certain costs for later determination and stayed the operation of its costs orders pending any appeal. It granted Peterson leave to apply for his costs to be taxed on an indemnity basis and set time limits for appeals and applications for leave to appeal.