AstraZeneca AB v Alphapharm Pty Ltd

AstraZeneca AB brought an application for pre-action discovery against Alphapharm Pty Ltd. AstraZeneca sought the discovery and inspection of documents and delivery samples from Alphapharm, anticipating a potential action for threatened infringement of a patent. The application was made pursuant to rule 7.23 of the Federal Court Rules 2011 (Cth). The primary legal issue was whether AstraZeneca had provided sufficient information to justify the court in deciding whether to grant the requested relief. This requirement is similar to the threshold for granting discovery under Order 15A, rule 6(b) of the Federal Court Rules 1979 (Cth).

The court considered whether AstraZeneca had demonstrated a reasonable cause of action and whether the requested discovery was necessary to enable AstraZeneca to decide whether to proceed with litigation. The court noted that the threshold for pre-action discovery is not identical to that for discovery under litigation but is nonetheless substantial. AstraZeneca had provided detailed information about the patent in question, the potential infringement, and the basis for its belief that a threatened infringement existed. However, the court found that AstraZeneca had not demonstrated a sufficient likelihood of success on the merits to warrant granting the application at that stage. The court also highlighted the importance of the proportionality of the discovery sought in relation to the potential action.

The court adjourned the application to a later date to allow AstraZeneca to provide additional information and to enable the court to make a more informed decision. The adjournment was intended to allow AstraZeneca to further substantiate its case and to demonstrate a stronger likelihood of success if the action were to proceed. The court's decision underscored the need for a clear and compelling showing before granting pre-action discovery, particularly in cases involving complex issues such as patent infringement. The orders made by the court reflected this cautious approach, with the application being adjourned to allow for further information to be presented.