Peterson v Merck Sharpe & Dohme (Australia) Pty Ltd
[2006] FCA 875
•4 JULY 2006
FEDERAL COURT OF AUSTRALIA
Peterson v Merck Sharpe & Dohme (Australia) Pty Ltd [2006] FCA 875
GRAEME ROBERT PETERSON v MERCK SHARPE & DOHME (AUSTRALIA) PTY LTD (ACN 000 173 508) and ANOR
VID 451 OF 2006JESSUP J
6 JULY 2006
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 451 OF 2006
BETWEEN:
GRAEME ROBERT PETERSON
APPLICANTAND:
MERCK SHARP & DOHME (AUSTRALIA) PTY LTD
(ACN 000 173 508)
FIRST RESPONDENTMERCK & CO. INC
SECOND RESPONDENTJUDGE:
JESSUP J
DATE OF ORDER:
4 JULY 2006
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The Applicant have leave to file and serve on or before 7 July 2006 an Application in the form filed on 3 July 2006.
2.On and from the date it is filed, the Application referred to in the previous order stand as the originating process herein.
3.Subject to the next succeeding order, the Applicant have leave to file and serve on or before 7 July 2006 an Amended Statement of Claim in the form filed on 3 July 2006.
4.In the Amended Statement of Claim referred to in the previous order, the Applicant -
(a)provide particulars of the word “safe” in paragraph 46;
(b)remove the present inconsistency between the formulation “could materially increase the risk” in paragraphs 12, 16, 17, 18, 19 and 59 on the one hand, and the formulation “materially increased the risk” appearing elsewhere on the other hand.
5.The Respondents’ objections to the Amended Statement of Claim argued before the Court today otherwise be dismissed.
6.The Respondents have leave to request on or before 14 July 2006 further and better particulars of the Amended Statement of Claim as so filed as they may be advised.
7.In the event that any such request is made, the Applicant provide a response thereto on or before 21 July 2006.
8.The Respondents file and serve their defence or defences on or before 4 August 2006.
9.On or before 17 July 2006 the Applicant serve upon the respondents a draft notice in accordance with section 33X(1)(a) of the Federal Court of Australia Act 1976.
10.On or before 24 July 2006 the Respondents serve upon the Applicant their written response to the Applicant's draft notice under section 33X(1)(a) of the Federal Court of Australia Act 1976.
11.The proceedings be listed for directions and for the purpose of approving the notice under section 33X(1)(a) of the Federal Court of Australia Act 1976 on 31 July 2006 at 10.15 am.
12.Costs be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 451 OF 2006
BETWEEN:
GRAEME ROBERT PETERSON
APPLICANTAND:
MERCK SHARP & DOHME (AUSTRALIA) PTY LTD
(ACN 000 173 508)
FIRST RESPONDENTMERCK & CO. INC
SECOND RESPONDENT
JUDGE:
JESSUP J
DATE:
6 JULY 2006
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This proceeding was commenced as a group proceeding under Part 4A of the Supreme Court Act 1986 (Vic) on 15 December 2005. It was commenced by Writ, on which was indorsed a Statement of Claim, in the Supreme Court of Victoria. On 10 April 2006, Gillard J ordered that the proceeding be transferred to this Court. The proceeding came before Weinberg J for directions on 7 June 2006, at which time counsel for the respondents indicated that his clients had certain objections to the sufficiency of the Statement of Claim for the purposes of s 33H of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’). His Honour gave directions for the exchange of contentions with respect to that matter, and for the respondents’ objections to the dealt with by him at a further directions hearing on 4 July 2006. The matter was subsequently reallocated to my docket within the Court, and came before me on that day.
On 3 July 2006, the applicant filed and served a draft of an originating Federal Court Application, to take the place of the Victorian Writ, and of an Amended Statement of Claim which, it was said, would reflect the fact that the proceeding was now in this Court and would anticipate some of the respondents’ objections to the sufficiency of the Statement of Claim under s 33H of the Federal Court Act. When the matter came before me on 4 July 2006, the respondents raised no separate objection, in point of form, to the applicant having leave to file and serve these new documents. The respondents did, however, maintain their objections under s 33H of the Federal Court Act, and contended that, in some respects, those objections concerned the originating Application as well as the Statement of Claim. They also submitted that the Statement of Claim was embarrassing in a number of other ways, to which I shall refer below.
Having heard the parties on 4 July 2006, I made orders which dealt both with the respondents’ objections to the Statement of Claim (and, in some respects, to the proposed Application) and with the future conduct of the proceeding. As to the latter aspect, there was little or no dispute between the parties. As to the former aspect, I indicated that I would provide written reasons for the orders which I made, and I now do so. These reasons should be read in conjunction with my orders dated 4 July 2006.
The proceeding concerns a non-steroidal anti-inflammatory drug called “rofecoxib” which was sold in tablet form under the name “Vioxx”. Vioxx was prescribed and taken for the relief of arthritis. The applicant says that he took Vioxx for this purpose, on prescription, between May 2001 and September 2004. He alleges that, on 8 December 2003, he suffered a myocardial infarction, which he says was caused by his consumption of Vioxx.
Broadly speaking, it is alleged that the other members of the group to whom the proceeding relates also obtained prescriptions for, and subsequently consumed, Vioxx for the relief of arthritis, and subsequently suffered, and were diagnosed as having suffered, one or more of the conditions described in the Amended Statement of Claim as “the Vioxx cardiovascular conditions” (as to which see para 11 below). It is alleged that, in each case, the group member suffered such conditions as a result of the consumption of Vioxx.
The first respondent is alleged to have been the Australian manufacturer and distributor of Vioxx tablets. The second respondent is an American company which is alleged to have provided rofecoxib to the first respondent to be used in the manufacture of Vioxx tablets.
The applicant’s claim against the respondents sounds both in negligence and under the Trade Practices Act1974 (Cth) (‘the Trade Practices Act’). Under the negligence claim, it is said that, at all material times after 30 June 1999, the consumption of rofecoxib could materially increase the risk of suffering the alleged Vioxx cardiovascular conditions, and that the first respondent knew or ought to have known that fact. It is said that the first respondent owed a duty of care to the group members in the manufacture, packaging, labelling, marketing, distributing and supplying for sale in Australia of Vioxx tablets. A series of allegations is then made against the first respondent which, together, stand at the centre of the applicant’s case in negligence: utilisation of rofecoxib rather than another drug which did not materially increase the risk of suffering the Vioxx cardiovascular conditions; failure to make any or any adequate enquiries of the second respondent regarding the adverse side effects and health risks that may be associated with the consumption of rofecoxib; failure to undertake research, investigations etc, to ascertain the adverse side effects and health risks associated with the consumption of rofecoxib; failure to have regard to the result of any such research, investigations etc; failure to await the results of any such research, investigations, etc; failure to provide adequate information, advice or warning on packets of Vioxx, or on associated labelling, to the effect that consumption of rofecoxib or Vioxx could materially increase the risk of suffering the Vioxx cardiovascular conditions; failure to provide pharmacists, medical practitioners and other health care professionals with any adequate information, advice or warning about rofecoxib or Vioxx tablets; failure to provide such information, warning etc, to the general public and/or to pharmacists, medical practitioners and other health care professionals who may advise or treat members of the public, and the like. It is further alleged that the first respondent failed, until 30 September 2004, to withdraw or recall Vioxx tablets which it had distributed and/or supplied for sale in Australia. The applicant alleged that these matters, taken in combination and in context, constituted a failure by the first respondent to take reasonable care to avoid acts and omissions that may have exposed him and each of the group members to a material increase in the risk of suffering the Vioxx cardiovascular conditions as a consequence of consuming Vioxx tablets.
Under the Trade Practices Act, the applicant relies first on s 52. His case is essentially one of omission, it being said that, by failing to provide information, advice, warnings etc, on packets of Vioxx, on labelling, and to pharmacists, medical practitioners and others, the first respondent engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, within the meaning of that provision. Under s 75AD of the Trade Practices Act, the applicant alleges that the Vioxx tablets were goods manufactured, or deemed to be manufactured, by the first respondent which contained a defect, and that he suffered injuries as a result of that defect. Under s 74B of the Trade Practices Act, the applicant alleges that the Vioxx tablets were acquired by him for the purpose of consumption as a safe non-steroidal anti-inflammatory drug, being a purpose which was made known to the first respondent. He alleges that the tablets were not reasonably fit for that purpose, and that he suffered one of the Vioxx cardiovascular conditions as a result thereof. Under s 74D of the Trade Practices Act, the applicant alleges that, because the consumption of rofecoxib could materially increase the risk of suffering the Vioxx cardiovascular conditions, the Vioxx tablets were not of merchantable quality, and he suffered loss and damage as a result.
The applicant proceeds against the second respondent in negligence only, his allegations in this regard relating to the supply of rofecoxib to the first respondent.
I turn now to the respondents’ objections to the Statement of Claim, even if it were to be amended in accordance with the draft filed on 3 July 2006. It is to that draft that I refer in my reasons hereunder.
Paragraph 2 of the Amended Statement of Claim reads as follows:
“2.The group members to whom this proceeding relates (“the group members”) are all the persons who:
(a)after 30 June 1999 obtained from a medical practitioner in Australia one or more prescriptions of the non-steroidal anti-inflammatory drug rofecoxib sold as tablets under the trade mark or brand “Vioxx” (“Vioxx tablets”) as pleaded in paragraph 6 herein; and
(b)after 30 June 1999 completed one or more prescriptions of Vioxx tablets purchased in Australia as pleaded in paragraph 7 herein; and
(c)at any time after completing their first prescription of Vioxx tablets purchased in Australia but before the day 30 weeks after last consuming a Vioxx tablet, suffered and were diagnosed as having suffered one or more of the following conditions:
(i)myocardial infarction;
(ii)thrombotic stroke;
(iii)unstable angina
(iv)transient ischaemic [sic] attack;
(v)peripheral vascular disease
(“the Vioxx cardiovascular conditions”)”
I was informed by Mr Waller, counsel for the respondents, that Vioxx was approved by the Therapeutic Goods Administration for the treatment of osteoarthritis only on 23 December 1999, and for the treatment of rheumatoid arthritis on 17 January 2002. Accordingly, he submitted, before 23 December 1999 Vioxx was not approved for any purpose. He submitted that the specification of 30 June 1999 as, in effect, a commencement date in para 2(a) of the Amended Statement of Claim was confusing and, therefore, embarrassing, in that it was a date which predated any approval by the Therapeutic Goods Administration and did not otherwise have any particular significance, in itself, to the claims of the applicant or the identification of the group. There was no evidence before me as to the specific role of the Therapeutic Goods Administration, or as to the consequences – for the respondents, for medical practitioners, for pharmacists or for the applicant and other group members – of Vioxx being manufactured, distributed, prescribed, supplied or consumed before the effective date of the first approval by the Therapeutic Goods Administration. However this may be, I do not consider that the disconformity between date chosen by the applicant in para 2(a) of the Amended Statement of Claim, on the one hand, and the date or dates on which Vioxx gained approval by the Therapeutic Goods Administration, on the other hand, gives rise to any non-compliance with the requirements of s 33H(1) of the Federal Court Act. The concern of para 2 of the Amended Statement of Claim is to describe or otherwise identify the group members to whom the proceeding relates as required by s 33H(1)(a). In so far as its temporal element is concerned, I consider that para 2(a) is sufficient to describe or identify the relevant group members.
Mr Waller next contended that the group definition in the Amended Statement of Claim (and the proposed originating Application) was sufficiently wide to capture persons who had been prescribed, and who had taken, Vioxx in Australia but who were no longer in Australia, and indeed, who may only have been casual visitors to Australia at the time that they were prescribed, and took, Vioxx. It was said that this circumstance would, potentially at least, lead to practical difficulties when the parties and the Court came to consider the terms, and the publication, of the notice required by s 33X of the Federal Court Act. As I understand his submissions, however, Mr Waller accepted that this point did not involve any deficiency in the pleading (or in the Application) as such, but rather involved a matter of considerable practical inconvenience in the future conduct of the proceedings. For present purposes I would be prepared to accept this latter proposition, although I indicated to the parties on 4 July 2006 that I had some confidence that, with the experienced level of representation which they enjoyed in the proceedings, practical issues of this kind could be resolved in a way that was both sensible and just. I consider that Mr Waller’s concession that this is not, in truth, a pleadings point was well-made. In the circumstances, I do not propose to strike out, or otherwise require the applicant to amend, any aspect of his pleading in this regard.
Mr Waller next submitted that there was a disconformity between certain provisions of the Amended Statement of Claim, such as to make the pleading, in relevant respects, embarrassing. Mr Waller drew attention to so much of para 2(c) of the Amended Statement of Claim (set out para 11 above) as required, in the group definition, that a person not only have suffered, but also have been diagnosed as having suffered, one or more of the Vioxx cardiovascular conditions. He contrasted this with a series of other paragraphs in the Amended Statement of Claim, of which para 8 may be taken as an example. That paragraph reads as follows:
“8.At some time after completing their first prescription of Vioxx tablets purchased in Australia but before the day 30 weeks after last consuming a Vioxx tablet each of the group members suffered one or more of the Vioxx cardiovascular conditions:
(a) The applicant suffered a myocardial infarction on 8 December 2003.”
It will be seen that para 8 requires only that the group members to whom it refers suffered one or more of the Vioxx cardiovascular conditions. It does not (as does para 2(c)) require also that the group members have been diagnosed as having suffered one or more of those conditions. My attention was drawn also to paras 22(c), 27(c) and 65(c) of the Amended Statement of Claim as being in the same category as para 8. Mr Quinn, who appeared on behalf of the applicant, submitted that this was not an embarrassing disconformity, but an appropriate distinction. He submitted that the requirement for a diagnosis contained in para 2(c) of the Amended Statement of Claim related to the definition of the group, whereas the requirement, with which the other paragraphs were concerned, that the group member in question only have suffered the relevant condition related to the substantive allegations constituting the relevant cause of action. Mr Quinn submitted that it was important to include, within the group definition, an objective criterion (diagnosis) by reference to which persons other than the applicant himself would be able to say whether they were, or were not, within the group. I would accept the substance of Mr Quinn’s submissions on this point. If the applicant chooses to define the group in a way which requires an element additional to those necessary for the existence of the relevant cause of action, thereby giving better definition to, and potentially narrowing, the identification of group members, it does not, in my estimation, give rise to any embarrassment in the way of disconformity as submitted by Mr Waller.
Mr Waller next drew attention to what was said to be another disconformity, that between the formulation used in paras 12, 16, 17, 18, 19 and 59(a) of the Amended Statement of Claim, on the one hand, and the different formulation used in other provisions of the Amended Statement of Claim, such as paras 15(a) and 62, on the other hand. Paragraph 12 reads as follows:
“12. At all material times after 30 June 1999 the consumption of rofecoxib could materially increase the risk of suffering the Vioxx cardiovascular conditions.”
By contrast, para 15(a) reads as follows:
“15.At all material times after 30 June 1999, in manufacturing Vioxx tablets, Merck Australia:
(a) utilised a non-steroidal anti-inflammatory drug, namely rofecoxib, the consumption of which materially increased the risk of suffering the Vioxx cardiovascular conditions;”
It will be seen that in para 12 it is alleged that the consumption of rofecoxib “could materially increase the risk” of suffering the Vioxx cardiovascular conditions. In para 15(a) it is alleged that the consumption of rofecoxib “materially increased the risk” of suffering those conditions. The problem to which Mr Waller pointed was in the apparently arbitrary use of “could” in para 12 and the other paragraphs with which it was associated in his submission on this point. Mr Quinn recognised this problem, and informed me that it would be corrected in the document when filed and served. Accepting Mr Quinn’s assurance on this point, I dealt with the matter in order 4(b) of the orders I made on 4 July 2006.
Mr Waller next submitted that there were two respects in which the applicant’s own claim (quite apart from any consideration of the proceeding as a group proceeding) was not properly pleaded in the Amended Statement of Claim. His first point concerned paras 16, 17, 18 and 19 thereof, which I set out below:
“16.Further and in the alternative, at all material times after 30 June 1999, in packaging and labelling Vioxx tablets, Merck Australia failed to provide any or any adequate information, advice or warning on packets of Vioxx tablets or the labelling thereon to the effect that the consumption of rofecoxib or Vioxx tablets could materially increase the risk of suffering the Vioxx cardiovascular conditions.
17.Further and in the alternative, at all material times after 30 June 1999, in marketing in Australia Vioxx tablets, Merck Australia failed to provide pharmacists, medical practitioners and other health care professionals any or any adequate information, advice or warning to the effect that the consumption of rofecoxib or Vioxx tablets could materially increase the risk of suffering the Vioxx cardiovascular conditions.
18.Further and in alternative, at all material times after 30 June 1999, in distributing and/or supplying for sale in Australia Vioxx tablets, Merck Australia failed to provide to pharmacists, medical practitioners and other health care professionals to whom Vioxx tablets were distributed and/or supplied any or any adequate information, advice or warning to the effect that the consumption of rofecoxib or Vioxx tablets could materially increase the risk of suffering the Vioxx cardiovascular conditions.
19.Further and in the alternative, at all material times after 30 June 1999, Merck Australia failed to provide any or any adequate information, advice or warning to the effect that the consumption of rofecoxib or Vioxx tablets could materially increase the risk of suffering the Vioxx cardiovascular conditions to:
(a)the general public and, thereby, consumers or potential consumers of Vioxx tablets; and/or
(b)pharmacists, medical practitioners and other health care professionals who may advise or treat members of the public who consumed Vioxx tablets.
It will be seen that each of these paragraphs alleges a failure to provide some kind information, advice or warning about the risks which it is alleged have been associated with the consumption of rofecoxib or Vioxx tablets. Mr Waller submitted that these paragraphs were deficient in not specifying what would have been an acceptable or adequate warning (information, etc) in the circumstances which obtained. I do not consider that the paragraphs are embarrassing or otherwise deficient in this respect. They state clearly what it is that the first respondent is alleged to have failed to do. The applicant is not, in order to avoid a ruling that his pleading is embarrassing, under an obligation to go further and limit his case by devising, in effect, a form of information, advice or warning that would have been sufficient in the circumstances.
The second submission made by Mr Waller with respect to the applicant’s own case is also related to paras 16, 17, 18 and 19 of the Amended Statement of Claim. He pointed out, correctly, that those paragraphs do not state what the applicant himself, or what his general practitioner, prescribing pharmacist, or other relevant health professional, would have done if adequate information and advice had in fact been given. Mr Waller said that this left open the possibility that, even if an unexceptionable warning had been provided by the first respondent, the applicant might have chosen not to heed that warning and to consume Vioxx tablets nonetheless. Mr Quinn submitted that the Amended Statement of Claim contained allegations that, by reason of the matters set out in a series of paragraphs which included 16, 17, 18 and 19, the first respondent failed, in various respects, to take reasonable care to avoid acts and omissions that might have exposed the applicant to a material increase in the risk of suffering the Vioxx cardiovascular conditions as a consequence of consuming Vioxx tablets, and thereby caused the applicant to be prescribed those tablets and to consume them. I consider that, in relevant respects, the pleading is satisfactory. I accept Mr Quinn’s submission on the point. As pleaded, and as concerns the applicant himself, the allegations in the Amended Statement of Claim are relatively straightforward: in essence, it is alleged that the first respondent manufactured and sold a product without warning intending users of the possibility of damaging side effects. It is said that the applicant consumed the product and suffered those side effects. The paragraphs of the Amended Statement of Claim with which I am concerned arise under the applicant’s case in negligence, and I do not consider it to be a necessary part of that case – either at all or to avoid embarrassment – that the applicant should specify how he would have acted in other circumstances.
Mr Waller next turned to an aspect of the Amended Statement of Claim which concerned the representative nature of the proceedings, as distinct from the applicant’s own claim against the respondents. This point also was concerned with paras 16, 17, 18 and 19 of the Amended Statement of Claim, but additionally with paras 20, 21 and 22 thereof, which read as follows:
“20.Further, despite the matters set out in paragraphs 15 to 19 herein, Merck Australia failed until 30 September 2004 to withdraw or recall Vioxx tablets which it had distributed and/or supplied for sale in Australia.
21.By reason of the matters set out in paragraphs 15 to 20 herein, in breach of its duty of care to each group member, at all material times after 30 June 1999 Merck Australia failed, in:
(a)manufacturing from rofecoxib; and/or
(b)packaging and labelling; and/or
(c)marketing in Australia; and/or
(d)distributing and/or supplying for sale in Australia
Vioxx tablets to take reasonable care to avoid acts and omissions that may expose each of the group members to a material increase in the risk of suffering the Vioxx cardiovascular conditions as a consequence of consuming Vioxx tablets.
22.The breach by Merck Australia of its duty of care to each group member caused each of the group members to:
(a)be prescribed by a medical practitioner in Australia one or more prescriptions of Vioxx tablets as pleaded in paragraph 6 herein; and
(b)complete one or more prescriptions of Vioxx tablets purchased in Australia as pleaded in paragraph 7 herein; and
(c)suffer one or more of the Vioxx cardiovascular conditions as pleaded in paragraph 8 herein; and
(d)experience pain and suffering and suffer loss and damage as pleaded in paragraph 10 herein.
Mr Waller submitted that a potential group member reading the Amended Statement of Claim would not know which of the essentially factual allegations contained in paras 16, 17, 18 and 19 would, for him or her, feed into the central allegation of breach of duty of care in para 21. This was because, allegations having been made in the alternative, the breach of duty of care might have come about by a quite different combination of circumstances as between different group members. Mr Quinn answered this submission by contending that paras 16, 17, 18 and 19 were concerned with the conduct of the first respondent itself, rather than with the circumstances of the applicant or any group member. Those paragraphs, he submitted, were expressed, primarily, cumulatively, but also in the alternative, in sense of different alternative factual scenarios about the way the first respondent acted, rather than with respect to the impact of those actions upon group members. In these respects also, I ought to accept the defence of the pleading offered by Mr Quinn. The matters referred to in para 21 of the Amended Statement of Claim are not included in the schedule of common questions appended thereto. The applicant appears to accept that, at the level of the breach of duty of care which is alleged, the relevant circumstances giving rise to a cause of action may differ as between different group members. Notwithstanding this, and notwithstanding that para 21 is based, to an extent, upon the factual allegations set out in paras 16, 17, 18 and 19, I consider that those allegations may appropriately be expressed in the alternative in so far as they are alternative propositions about the conduct of the first respondent itself. There is, I consider, no embarrassment in the applicant relying upon allegations of that kind, expressed in the alternative as they are, to lead into an allegation of breach of duty of care to each group member, where non-common questions may arise.
Mr Waller’s next submission related to paras 20 and 63 of the Amended Statement of Claim. To understand the point, it is sufficient to focus upon para 20 which is set out above. Mr Waller contended that the allegation was deficient in failing to state exactly when the first respondent should have withdrawn or recalled Vioxx tablets from the market. Mr Quinn accepted that, at an appropriate time, the applicant should provide particulars under para 20 which did specify a date when withdrawal and recall should have occurred. He submitted, however, that particulars of this kind could only be given after discovery in the proceeding. Mr Waller submitted that the problem with para 20 ran deeper than a mere failure to provide particulars: he contended that the pleading itself should contain an assertion as to the appropriate date of withdrawal recall. On this point, I accept the position put by Mr Quinn. I do not consider that para 20 of the Amended Statement of Claim is embarrassing because it does not, as a pleading in its own right, set out the applicant’s position with respect to an appropriate date of withdrawal or recall.
Mr Waller’s final submission concerned para 46 of the Amended Statement of Claim, which reads as follows:
“46.Each group member acquired the Vioxx tablets consumed by them for the purpose of consumption as a safe non-steroidal anti-inflammatory drug (“the purpose of acquisition”).”
Mr Waller contended that the word “safe” was vague and embarrassing, and should be the subject of specific elaboration in para 46 itself. Mr Quinn accepted an obligation to provide the particulars of this word, but resisted the proposition that the pleading itself was bad simply because it used the word. Again, I accept Mr Quinn’s position in this respect. The word “safe” is an ordinary word in common usage and is appropriate for incorporation in allegation of the kind contained in para 46. Because it is a word of broad potential connotation in the circumstances of a particular case, however, I accept that the applicant’s proposal to provide particulars is sensible, and that matter is dealt with in order 4(a) which I made on 4 July 2006.
I certify that the preceding twenty (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 6 July 2006
Counsel for the Applicant: Mr B Quinn Solicitor for the Applicant: Slater & Gordon Counsel for the Respondent: Mr I G Waller Solicitor for the Respondent: Clayton Utz Date of Hearing: 4 July 2006 Date of Judgment: 6 July 2006
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