AstraZeneca AB v Medis Pharma Pty Ltd - [2014] FCA 549

FEDERAL COURT OF AUSTRALIA
AstraZeneca AB v Medis Pharma Pty Ltd [2014] FCA 549

Citation: AstraZeneca AB v Medis Pharma Pty Ltd [2014] FCA 549

Parties: ASTRAZENECA AB and ASTRAZENECA PTY LTD (ABN 54 009 682 311) v MEDIS PHARMA PTY LTD

File number: VID 231 of 2014

Judge: BESANKO J

Date of judgment: 28 May 2014

Catchwords:
PRACTICE AND PROCEDURE – confidentiality regime between the parties set out in Court order – application to extend confidentiality regime to include “in-house” legal advisers of the applicants – whether confidentiality regime should be extended – factors relevant to whether persons should be included in confidentiality regime – where no person within existing confidentiality regime able to give instructions on behalf of the applicant – balance between risk of inadvertent or accidental disclosure and need for ability to seek appropriate advice and provide informed instructions.

Held: Application allowed in part. Orders made to extend the confidentiality regime on the provision of undertakings as to loss and damage.

Cases cited: Alphapharm Pty Ltd v Lundbeck Australia Pty Ltd [2006] FCA 1358
Conor Medsystems, Inc v The University of British Columbia (No 4) [2007] FCA 324
Interpharma Pty Ltd v Commissioner of Patents [2008] FCA 1422
Luxottica Retail Australia Pty Ltd v Specsavers Pty Ltd (No 3) [2011] FCA 793
Mobil Oil Australia Ltd and Another v Guina Developments Pty Ltd and Another (1996) 33 IPR 82
United States Steel Corporation v United States 730 F2d 1465 (Fed Cir 1984)
Warner‑Lambert Co. v Glaxo Laboratories Limited [1975] RPC 354

Date of hearing: 19 May 2014

Place: Perth (heard in Adelaide via video link to Melbourne)

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 19

Counsel for the Applicants/Cross‑Respondent: Mr B Fitzpatrick

Solicitor for the Applicants/Cross‑Respondents: Ashurst Australia

Counsel for the Respondent/Cross‑Claimant: Mr T Cordiner

Solicitor for the Respondent/Cross‑Claimant: King & Wood Mallesons

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 231 of 2014

BETWEEN:
ASTRAZENECA AB
First Applicant
First Cross‑Respondent

ASTRAZENECA PTY LTD (ABN 54 009 682 311)
Second Applicant
Second Cross‑Respondent

AND:
MEDIS PHARMA PTY LTD
Respondent
Cross‑Claimant

JUDGE:

BESANKO J

DATE OF ORDER:

28 MAY 2014

WHERE MADE:

PERTH VIA VIDEO LINK TO MELBOURNE

UPON THE APPLICANTS giving an undertaking to be liable for any direct or indirect loss, damages, costs or expenses to or suffered by the respondent in the event of disclosure of the confidential information by any of the persons referred to in the order below to any person other than a member of the Confidentiality Club,
THE COURT ORDERS THAT:
1.Subject to signing a confidentiality undertaking in the form set out in Schedule 3 of the order made in this proceeding on 30 April 2014, and a copy of the same being provided to the respondent’s solicitors, each of the following persons shall be permitted to receive the confidential information as defined in Schedule 3 of the said order:
(a)Mr James Sharkey, Legal Director, Australia & New Zealand, AstraZeneca Pty Ltd;
(b)Mr Benjamin McDonald,…

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: [2014] FCA 549
Decision Date: 28 May 2014

CaseChat Overview and Summary

In the case of AstraZeneca AB v Medis Pharma Pty Ltd, the Federal Court was tasked with determining an application to extend the confidentiality regime between the parties to include certain in-house legal advisers of the applicant. The dispute between the parties centred around the interpretation and application of the confidentiality regime that had been established by a previous court order. The applicants sought to extend the scope of this regime to ensure that specific legal advisers could also handle confidential information under certain conditions.

The primary legal issue the court had to address was whether the confidentiality regime should be extended to include the named in-house legal advisers. In assessing this, the court considered several factors, including the necessity of including these advisers in the confidentiality regime to enable them to give instructions on behalf of the applicant and the balance between the risk of inadvertent or accidental disclosure and the need for the applicants to seek appropriate advice and provide informed instructions.

The court found that the balance tipped in favour of extending the confidentiality regime to the specified advisers, provided they signed a confidentiality undertaking. The undertakings would ensure that these individuals were bound by the same obligations as the existing parties to the confidentiality regime. The court allowed the application in part, making orders to extend the confidentiality regime to include the named advisers on the condition that they sign the required undertakings. The orders also mandated that a copy of these undertakings be provided to the respondent's solicitors.

These orders were made to ensure that the confidentiality regime was sufficiently robust to protect the sensitive information involved in the litigation while allowing the applicants to manage their legal affairs effectively. The court’s decision was carefully balanced to meet the needs of the applicants without compromising the integrity of the confidential information.

Orders

Orders of the court

1. Subject to signing a confidentiality undertaking in the form set out in Schedule 3 of the order made in this proceeding on 30 April 2014, and a copy of the same being provided to the respondent’s solicitors, each of the following persons shall be permitted to receive the confidential information as defined in Schedule 3 of the said order:

(a) Mr James Sharkey, Legal Director, Australia & New Zealand, AstraZeneca Pty Ltd;

(b) Mr Benjamin McDonald, Assistant General Counsel, Global Litigation, AstraZeneca AB; and

(c) Mr Marcus Heifetz, Senior Counsel, Global Patent Litigation, AstraZeneca Pharmaceuticals LP (a related company of AstraZeneca AB and AstraZeneca Pty Ltd).

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:	AstraZeneca AB v Medis Pharma Pty Ltd [2014] FCA 549
Parties:	ASTRAZENECA AB and ASTRAZENECA PTY LTD (ABN 54 009 682 311) v MEDIS PHARMA PTY LTD
File number:	VID 231 of 2014
Judge:	BESANKO J
Date of judgment:	28 May 2014
Catchwords:	PRACTICE AND PROCEDURE – confidentiality regime between the parties set out in Court order – application to extend confidentiality regime to include “in-house” legal advisers of the applicants – whether confidentiality regime should be extended – factors relevant to whether persons should be included in confidentiality regime – where no person within existing confidentiality regime able to give instructions on behalf of the applicant – balance between risk of inadvertent or accidental disclosure and need for ability to seek appropriate advice and provide informed instructions. Held: Application allowed in part. Orders made to extend the confidentiality regime on the provision of undertakings as to loss and damage.
Cases cited:	Alphapharm Pty Ltd v Lundbeck Australia Pty Ltd [2006] FCA 1358 Conor Medsystems, Inc v The University of British Columbia (No 4) [2007] FCA 324 Interpharma Pty Ltd v Commissioner of Patents [2008] FCA 1422 Luxottica Retail Australia Pty Ltd v Specsavers Pty Ltd (No 3) [2011] FCA 793 Mobil Oil Australia Ltd and Another v Guina Developments Pty Ltd and Another (1996) 33 IPR 82 United States Steel Corporation v United States 730 F2d 1465 (Fed Cir 1984) Warner‑Lambert Co. v Glaxo Laboratories Limited [1975] RPC 354
Date of hearing:	19 May 2014
Place:	Perth (heard in Adelaide via video link to Melbourne)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	19
Counsel for the Applicants/Cross‑Respondent:	Mr B Fitzpatrick
Solicitor for the Applicants/Cross‑Respondents:	Ashurst Australia
Counsel for the Respondent/Cross‑Claimant:	Mr T Cordiner
Solicitor for the Respondent/Cross‑Claimant:	King & Wood Mallesons

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 231 of 2014

JUDGE:	BESANKO J
DATE OF ORDER:	28 MAY 2014
WHERE MADE:	PERTH VIA VIDEO LINK TO MELBOURNE