Alphapharm Pty Ltd v Lundbeck Australia Pty Ltd - [2006] FCA 1358

FEDERAL COURT OF AUSTRALIA
Alphapharm Pty Ltd v Lundbeck Australia Pty Ltd [2006] FCA 1358
PRACTICE AND PROCEDURE – inspection of discovered documents – whether documents discovered should be made available for inspection by internal counsel of other party – confidentiality – whether discovering party claiming confidentiality established that numerous documents marked “Confidential – External Counsel only” should not be inspected by other party’s internal counsel – internal counsel a solicitor holding a current unrestricted practising certificate who had been previously employed by the external solicitors for the party seeking the order permitting inspection by him – onus of proof.
Held: claim to withhold inspection of the documents as a class not made out, but leave reserved to apply in respect of particular documents.
ALPHAPHARM PTY LTD (ACN 002 359 739) v
H LUNDBECK A/S AND LUNDBECK AUSTRALIA PTY LTD (ACN 070 094 290)
NSD 1120 OF 2005
LUNDBECK AUSTRALIA PTY LTD (ACN 070 094 290) v
SECRETARY OF THE DEPARTMENT OF HEALTH & AGEING OF THE COMMONWEALTH OF AUSTRALIA AND ALPHAPHARM PTY LTD
NSD 1870 OF 2005
LINDGREN J
29 SEPTEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
NSD 1120 OF 2005

BETWEEN:

ALPHAPHARM PTY LTD (ACN 002 359 739)
Applicant/Cross-respondent

AND:

H LUNDBECK A/S
Respondent/First Cross-claimant

LUNDBECK AUSTRALIA PTY LTD (ACN 070 094 290)
Second Cross-claimant

JUDGE:

LINDGREN J

DATE OF ORDER:

29 SEPTEMBER 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The solicitors for the applicant be entitled to disclose the documents discovered and designated “Confidential – External Counsel Only” by the respondent/first cross-claimant and the second cross-claimant, to Dr Frank Traugott, subject to his first giving an undertaking in suitable form.

2. Disclosure not take place until Friday 13 October 2006.
3.The respondent/first cross-claimant and the second cross-claimant have leave to file a notice of motion by Friday 13 October 2006, seeking an order that a particular document or documents be excluded from order 1.
4. Any notice of motion filed by the respondent/first cross-claimant and second cross-claimant by Friday 13 October 2006 be returnable on Wednesday 18 October 2006 at 9:30am.
5.If the respondent/first cross-claimant and the second cross-claimant file a notice of motion pursuant to the leave given in order 3, order 1 will not apply to the document or documents the subject of the notice of motion until the final hearing and determination of the motion.
6. The respondent/first cross-claimant and the second cross-claimant pay the applicant’s costs of the applicant’s motion.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1870 OF 2005

BETWEEN:

LUNDBECK AUSTRALIA PTY LTD (ACN 070 094 290)
Applicant

AND:

SECRETARY OF THE DEPARTMENT OF HEALTH AND AGEING OF THE COMMONWEALTH OF AUSTRALIA
First Respondent

ALPHAPHARM PTY LTD (ACN 002 359 739)
Second Respondent

JUDGE:

LINDGREN J

DATE OF ORDER:

29 SEPTEMBER 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The…

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: [2006] FCA 1358
Decision Date: 29 SEPTEMBER 2006

CaseChat Overview and Summary

Alphapharm Pty Ltd, the applicant, sought an order for the disclosure of certain documents from Lundbeck Australia Pty Ltd, the respondent, and another party, the second cross-claimant. The dispute was about the disclosure of documents that had been designated as "Confidential – External Counsel Only" by the respondent and the second cross-claimant, which Alphapharm argued were necessary for their case. The matter was heard in the Federal Court of Australia.

The court was required to determine whether the applicant was entitled to the disclosure of the confidential documents, and if so, under what conditions. The respondent and second cross-claimant opposed the disclosure, citing confidentiality concerns. The applicant argued that the documents were relevant to the case and that the confidentiality designation was not sufficient to prevent their disclosure.

The court ruled in favour of the applicant, granting them permission to disclose the documents to Dr Frank Traugott, subject to him providing an appropriate undertaking. The court also allowed the respondent and second cross-claimant to seek the exclusion of specific documents from the disclosure order and set a deadline for them to file such a motion. If a motion was filed, the disclosure order would not apply to the specified documents until the motion was heard and determined. The court further directed that the disclosure would not take place until a specified date and that the respondent and second cross-claimant would bear the costs of the applicant's motion.

The court's orders provided specific timelines and conditions for the disclosure of the documents, as well as mechanisms for the respondent and second cross-claimant to challenge the disclosure of certain documents. The orders ensured that the applicant could access the necessary documents for their case while balancing the respondent's and second cross-claimant's concerns about confidentiality.

Orders

Orders of the court

1. The solicitors for the applicant be entitled to disclose the documents discovered and designated “Confidential – External Counsel Only” by the respondent/first cross-claimant and the second cross-claimant, to Dr Frank Traugott, subject to his first giving an undertaking in suitable form.

2. Disclosure not take place until Friday 13 October 2006.

3. The respondent/first cross-claimant and the second cross-claimant have leave to file a notice of motion by Friday 13 October 2006, seeking an order that a particular document or documents be excluded from order 1.

4. Any notice of motion filed by the respondent/first cross-claimant and second cross-claimant by Friday 13 October 2006 be returnable on Wednesday 18 October 2006 at 9:30am.

5. If the respondent/first cross-claimant and the second cross-claimant file a notice of motion pursuant to the leave given in order 3, order 1 will not apply to the document or documents the subject of the notice of motion until the final hearing and determination of the motion.

6. The respondent/first cross-claimant and the second cross-claimant pay the applicant’s costs of the applicant’s motion.

1. The solicitors for the second respondent be entitled to disclose the documents discovered and designated “Confidential – External Counsel Only” by the applicant in this proceeding, to Dr Frank Traugott, subject to his first giving an undertaking in suitable form.

2. Disclosure not take place until Friday 13 October 2006.

3. The applicant have leave to file a notice of motion by Friday 13 October 2006, seeking an order that a particular document or documents be excluded from order 1.

4. Any notice of motion filed by the applicant by Friday 13 October 2006 be returnable on Wednesday 18 October 2006 at 9:30am.

5. If the applicant files a notice of motion pursuant to the leave given in order 3, order 1 will not apply to the document or documents the subject of the notice of motion until the final hearing and determination of the applicant’s motion.

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

LINDGREN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LINDGREN J

Full text does not contain this section.

BETWEEN:		ALPHAPHARM PTY LTD (ACN 002 359 739) Applicant/Cross-respondent
AND:		H LUNDBECK A/S Respondent/First Cross-claimant LUNDBECK AUSTRALIA PTY LTD (ACN 070 094 290) Second Cross-claimant
JUDGE:	LINDGREN J
DATE OF ORDER:	29 SEPTEMBER 2006
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1870 OF 2005

BETWEEN:	LUNDBECK AUSTRALIA PTY LTD (ACN 070 094 290) Applicant
AND:	SECRETARY OF THE DEPARTMENT OF HEALTH AND AGEING OF THE COMMONWEALTH OF AUSTRALIA First Respondent ALPHAPHARM PTY LTD (ACN 002 359 739) Second Respondent
JUDGE:	LINDGREN J
DATE OF ORDER:	29 SEPTEMBER 2006
WHERE MADE:	SYDNEY