Merck KGaA v Merck Sharp Dohme Corp [2019] FCA 1084

FEDERAL COURT OF AUSTRALIA

Merck KGaA v Merck Sharp Dohme Corp [2019] FCA 1084 File number: NSD 610 of 2018

Judge: NICHOLAS J

Date of judgment: 12 July 2019

Catchwords: ESTOPPEL – issue estoppel – proper law of "co-existence" agreement – whether first respondent precluded from denying that agreement governed by German law – whether first respondent bound by issue estoppel arising out of proceedings between applicant and the first respondent in United Kingdom ("UK proceedings") in which it was found that the agreement was governed by German law – whether test applied in UK proceedings was different from test to be applied under Australian law – whether issue estoppel would arise were different tests applied PRACTICE AND PROCEDURE – abuse of process – whether the second and third respondents who are wholly owned subsidiaries of the first respondent and who were not party to the agreement or the UK proceedings are entitled to contend in this proceeding that the agreement is governed by New Jersey law – whether second and third respondents precluded from denying that agreement is governed by German law – whether an abuse of process for second and third respondents to deny agreement is governed by German law

Legislation: Federal Court Rules 1979 (Cth) O 29, r 2 Federal Court Rules 2011 (Cth) r 30.01

Cases cited: Akai Pty Ltd v People's Insurance Company Limited (1996) 188 CLR 418 Australian Competition and Consumer Commission v Valve Corp (No 3) (2016) 337 ALR 647 Blair v Curran (1939) 62 CLR 464 Bonython v Commonwealth (1950) 81 CLR 486 Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853 Coast Lines Ltd v Hudig & Veder NV [1971] 2 Lloyd's Law Reports 390 Coast Lines Ltd. v Hudig Chartering (C.A.) [1972] 2 QB 34 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV [2010] FCA 1293 Haines v Australian Broadcasting Corporation (1995) NSWLR 404 Kuligowski v Metrobus (2004) 220 CLR 363 Merck KGaA v Merck Sharp & Dohme Corp [2014] EWHC 3867 (Ch) Merck KGaA v Merck Sharp & Dohme [2016] EWHC 49 (Pat) Merck KGaA v Merck Sharp & Dohme [2017] EWCA Civ 1834 Mount Albert BC v Australasian Temperance & General Mutual Life Assurance Society Ltd [1938] AC 224 O'Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698 Ramsay v Pigram (1968) 118 CLR 271 Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 Rogers v The Queen (1994) 181 CLR 251 Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport (2011) 91 IPR 438 State Bank of New South Wales Ltd v Stenhouse Ltd [1997] Aust Torts Rep ¶81-423 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 UBS AG v Tyne (2018) 360 ALR 184 Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2014] AC 160 Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581