Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd - [1996] FCA 723

CATCHWORDS

PRACTICE AND PROCEDURE - discovery - whether documents subject to legal professional privilege - status of copies prepared for submission to expert for preparation of report - whether contents of documents had been disclosed and privilege waived.

Evidence Act 1995 (Cth) ss118 and 119

Trade Practices Commission v Sterling (1979) 36 FLR 244
Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224
Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44
Grant v Downs (1976) 135 CLR 674
Wheeler v Le Marchant (1881) 17 ChD 675
Corporation of Bristol v Cox (1884) 26 ChD 678
Trade Practices Commission v Port Adelaide Wool Co Pty Ltd (1995) 132 ALR 645
Buttes Oil Co v Hammer (No. 3) 1981 QB 223
Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475

No. NG 432 of 1996

ALPHAPHARM PTY LTD -v- ELI LILLY AUSTRALIA PTY LIMITED

MOORE J
SYDNEY
14 AUGUST 1996

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )       No. NG 432 of 1996
  )
GENERAL DIVISION                 )

BETWEEN: ALPHAPHARM PTY LTD

Applicant

AND: ELI LILLY AUSTRALIA PTY LIMITED

Respondent

JUDGE: Moore J

PLACE: Sydney

DATE: 14 August 1996

ORDER OF THE COURT

THE COURT ORDERS AND DECLARES THAT:

The documents identified in paragraphs 4, 19, 23, 24, 25, 28 and 53 of Part 2 of Schedule I of the respondent's List of Documents dated 11 July 1996 ("Part 2") are subject to legal professional privilege.

The documents identified in paragraphs 49 and 62 of Part 2 are subject to legal professional privilege save for the copies of the affidavits of Dr John Bartley dated 9 May 1996 and Mrs Jane Maree Plomley of 9 May 1996 and the draft affidavit of Dr Gerald Holden which are not.

The documents identified in paragraphs 2 and 5 of Part 2 are not subject to legal professional privilege.

The respondent file and serve all affidavits on which it intends to rely which relate to

(a)the documents identified in paragraph 4 of Part 2;

(b)pages 2173 and 2175 of the bundle of documents identified in paragraph 49 of Part 2;

(c)pages 2817 to 2823, 2826, 2827, 2850, 2869 to 2872 and 2887 to 2889 of the bundle of documents identified in paragraph 53 of Part 2;

(d)pages 4548 to 4551, 4568 and 4574 of the bundle of documents identified in paragraph 62 of Part 2; and

(e)any issues or matters arising out of the documents identified in (a) to (d) above

by 3 September 1996, or in accordance with any further directions of the Court or consented to by the applicant, and not otherwise without the leave of the Court.

The respondent not be permitted, unless with the leave of the Court, to tender at the trial of the proceedings

(a)the documents identified in paragraph 4 above; and

(b)any documents relating to the issues or matters raised in the documents identified in…

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.

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Details

Case: [1996] FCA 723
Decision Date: 14 AUGUST 1996

CaseChat Overview and Summary

Alphapharm Pty Ltd, a manufacturer of the anti-depressant drug Zactin, brought proceedings against Eli Lilly Australia Pty Limited, a manufacturer of Prozac, which also contains the active ingredient fluoxetine hydrochloride. The dispute arose following the expiration of Eli Lilly's patent on fluoxetine hydrochloride, which led to the inclusion of Zactin in the schedule of pharmaceutical benefits under the National Health Act 1953 as a bioequivalent of Prozac. The court was required to determine whether certain documents were privileged and whether Eli Lilly had waived that privilege. The legal issues involved the status of copies of privileged documents and the dominant purpose test for privilege.

The court found that certain documents were privileged as they constituted communications between Eli Lilly and its solicitors or third parties for the purpose of preparing for litigation. It held that copies of privileged documents were also privileged if they revealed the line of thought of the client or solicitor concerning the litigation. However, copies of non-privileged documents were not privileged even if made for a privileged purpose. The court also determined that the dominant purpose test applied, and that the documents in question were created for the sole purpose of prosecuting litigation. Finally, the court found that Eli Lilly had not waived its privilege by referring to "data" in the Administrative Decisions (Judicial Review) Act 1977 proceedings or by publishing a letter concerning the reaction between lactose and fluoxetine.

The court granted orders limiting the use that might be made of privileged documents at the trial of the proceedings. It also ordered that the costs of the application be part of the costs in the principal proceedings.

Orders