Apotex Pty Ltd v Pfizer Ireland Pharmaceuticals - [2014] FCA 1150

FEDERAL COURT OF AUSTRALIA
Apotex Pty Ltd v Pfizer Ireland Pharmaceuticals [2014] FCA 1150

Citation: Apotex Pty Ltd v Pfizer Ireland Pharmaceuticals [2014] FCA 1150

Parties: APOTEX PTY LTD (ACN 096 916 148) v PFIZER IRELAND PHARMACEUTICALS and PFIZER AUSTRALIA PTY LTD (ACN 008 422 348); PFIZER INC

File number: NSD 1174 of 2012

Judge: BEACH J

Date of judgment: 13 October 2014

Catchwords: PRACTICE AND PROCEDURE – application under r 2.32(4) of the Federal Court Rules 2011 (Cth) – inspection of documents in separate finalised proceeding – relevance of earlier filed material – principles of open justice – prejudice to opposing party – delay in making of application – application for leave to issue subpoena seeking production of similar documents – application and leave granted

Legislation: Federal Court of Australia Act 1976 (Cth) s 37M
Federal Court Rules 2011 (Cth) r 2.32(4)
Patents Act 1990 (Cth) ss 40(2)-(3)

Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Brown v Health Services Union (No 4) [2012] FCA 1376
Eli Lilly v Pfizer (2005) 64 IPR 506
Hogan v Australian Crime Commission (2010) 240 CLR 651
Pfizer v Eli Lilly (2005) 68 IPR 1
Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia(No 13) [2012] FCA 370

Date of hearing: 13 October 2014

Date of publication of reasons: 28 October 2014

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 23

Counsel for the Applicant/Cross Respondent: Mr N Murray

Solicitors for the Applicant/Cross Respondent: Ashurst Australia

Counsel for the Respondents/Cross Claimants: Mr T Bannon SC with Mr T Cordiner

Solicitors for the Respondents/Cross Claimants: DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

NSD 1174 of 2012

BETWEEN:
APOTEX PTY LTD (ACN 096 916 148)
Applicant

PFIZER IRELAND PHARMACEUTICALS
Respondent

PFIZER IRELAND PHARMACEUTICALS and others named in the schedule
Cross-Claimants

APOTEX PTY LIMITED (ACN 096 916 148)
Cross-Respondent

JUDGE:

BEACH J

DATE OF ORDER:

13 OCTOBER 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.Pursuant to Rule 2.32(4) of the Federal Court Rules 2011, the Applicant have leave to inspect and photocopy the documents referred to in the written request to the Court dated 11 August 2014 made by Kane Wishart of Ashurst Australia, being documents from the Court file in proceeding VID 604/2002 Eli Lilly and Company v Pfizer Overseas Pharmaceuticals & Anor (with the reference in the request to the affidavit of David Brown being treated as a reference to the affidavit of Lindsay Brown).
2.The Applicant have leave to issue a subpoena to produce documents to Mr John Denton, Managing Partner of Corrs Chambers Westgarth, in the form attached to the Affidavit of Kellech Nanette Smith sworn 6 October 2014, with leave to effect such short service of the subpoena as is required.
3.The Applicant no later than 12.00 noon on 23 October 2014 file and serve submissions identifying each affidavit and each document, which has been produced under the said subpoena or obtained from 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.

Keep reading for free

Create a free CaseChat account to read Apotex Pty Ltd v Pfizer Ireland Pharmaceuticals and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FCA 1150
Decision Date: 13 October 2014

CaseChat Overview and Summary

Apotex Pty Ltd sought an order under Rule 2.32(4) of the Federal Court Rules 2011 to inspect documents from a previous proceeding, Eli Lilly and Company v Pfizer Overseas Pharmaceuticals. This was done to ascertain their relevance for the current proceedings. The application was contested by Pfizer Ireland Pharmaceuticals, who argued that the application was an abuse of process and would prejudice them. The central issue before the court was whether the applicant was entitled to inspect the documents in question and whether the application was made in good faith and without undue delay.

The court found that the application was made in good faith and was not an abuse of process. It noted that the documents sought were relevant to the current proceedings and could potentially assist in determining the issues at hand. The court also held that the delay in making the application did not necessarily preclude the grant of leave. It was satisfied that the prejudice to the respondents was not significant enough to warrant refusal of the application. The court emphasised the importance of the principles of open justice and the need for a fair trial.

Accordingly, the court granted the application and allowed the applicant to inspect and photocopy the documents from the previous proceeding. The court also granted leave to issue a subpoena to produce documents from a third party. The applicant was required to file and serve submissions identifying the documents they intended to tender or deploy at trial, along with the purpose and basis for such action. The respondents' compliance with the notice to produce was extended to allow for the inspection and potential use of the documents. The costs of the application were reserved for later determination.

Orders

Orders of the court

1. Pursuant to Rule 2.32(4) of the Federal Court Rules 2011, the Applicant have leave to inspect and photocopy the documents referred to in the written request to the Court dated 11 August 2014 made by Kane Wishart of Ashurst Australia, being documents from the Court file in proceeding VID 604/2002 Eli Lilly and Company v Pfizer Overseas Pharmaceuticals & Anor (with the reference in the request to the affidavit of David Brown being treated as a reference to the affidavit of Lindsay Brown).

2. The Applicant have leave to issue a subpoena to produce documents to Mr John Denton, Managing Partner of Corrs Chambers Westgarth, in the form attached to the Affidavit of Kellech Nanette Smith sworn 6 October 2014, with leave to effect such short service of the subpoena as is required.

3. The Applicant no later than 12.00 noon on 23 October 2014 file and serve submissions identifying each affidavit and each document, which has been produced under the said subpoena or obtained from the said Court file, that it seeks to tender in evidence or otherwise deploy in whole or in part at trial. Such submissions are to identify precisely the whole or that part of the affidavit or document which is sought to be tendered or otherwise deployed and the purpose and the basis under the Evidence Act 1995 (Cth) for such tender or deployment.

4. Compliance by the Respondents with the Applicant’s notice to produce dated 6 October 2014 be extended until 10.15 am on 30 October 2014 or further order.

5. Costs reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Apotex Pty Ltd v Pfizer Ireland Pharmaceuticals [2014] FCA 1150
Parties:	APOTEX PTY LTD (ACN 096 916 148) v PFIZER IRELAND PHARMACEUTICALS and PFIZER AUSTRALIA PTY LTD (ACN 008 422 348); PFIZER INC
File number:	NSD 1174 of 2012
Judge:	BEACH J
Date of judgment:	13 October 2014
Catchwords:	PRACTICE AND PROCEDURE – application under r 2.32(4) of the Federal Court Rules 2011 (Cth) – inspection of documents in separate finalised proceeding – relevance of earlier filed material – principles of open justice – prejudice to opposing party – delay in making of application – application for leave to issue subpoena seeking production of similar documents – application and leave granted
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules 2011 (Cth) r 2.32(4) Patents Act 1990 (Cth) ss 40(2)-(3)
Cases cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Brown v Health Services Union (No 4) [2012] FCA 1376 Eli Lilly v Pfizer (2005) 64 IPR 506 Hogan v Australian Crime Commission (2010) 240 CLR 651 Pfizer v Eli Lilly (2005) 68 IPR 1 Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia(No 13) [2012] FCA 370
Date of hearing:	13 October 2014
Date of publication of reasons:	28 October 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	23
Counsel for the Applicant/Cross Respondent:	Mr N Murray
Solicitors for the Applicant/Cross Respondent:	Ashurst Australia
Counsel for the Respondents/Cross Claimants:	Mr T Bannon SC with Mr T Cordiner
Solicitors for the Respondents/Cross Claimants:	DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	NSD 1174 of 2012

JUDGE:	BEACH J
DATE OF ORDER:	13 OCTOBER 2014
WHERE MADE:	MELBOURNE