Apotex Pty Ltd (ACN 096 916 148) v Les Laboratoires Servier

Apotex Pty Ltd brought proceedings against Les Laboratoires Servier concerning the amendment of the Alpha Crystalline Patent. The central dispute focused on whether Servier had waived its legal professional privilege over communications related to the proposed patent amendment. The court considered whether privilege was waived by Servier in relation to all documents subject to a notice to produce, and whether the waiver extended to the content of the advice given.

The primary legal issue was whether Servier had waived its legal professional privilege regarding the communications between Mr Hamer and Servier about the patent amendment. The court examined the principles of waiver of legal professional privilege, considering whether Servier's actions were inconsistent with maintaining the confidentiality of the privileged communications.

The court found that Servier had indeed waived privilege. It reasoned that by putting the fact of the advice in issue, Servier acted inconsistently with maintaining the confidentiality required for privilege. The court noted that while waiver can be express or implied, it occurs irrespective of the subjective intention of the party. The disclosure of the fact and conclusions of the advice without contesting the content or full scope of the advice constituted a waiver. The court also highlighted that each case depends on its own facts, but considered relevant precedents where similar circumstances led to a finding of waiver.

The court concluded that Servier had waived privilege concerning the advice given by Mr Hamer. It ordered the parties to inform the court whether they accepted or disputed the waiver's scope regarding all documents in the notice to produce, and to propose any necessary directions for the matter's progression.