GlaxoSmithKline Australia Pty Ltd v Pharmacor Pty Ltd

GlaxoSmithKline Australia Pty Ltd (GSK) sought an order for preliminary discovery from Pharmacor Pty Ltd, the respondent, in a case before the Federal Court of Australia. GSK, the applicant, sought discovery and inspection of documents lodged with the Therapeutic Goods Administration (TGA) and samples of the respondent's products. The dispute concerned potential rights to relief arising from the respondent's alleged contravention of the Australian Consumer Law and/or infringement of a patent. GSK sought the order under rule 7.23 of the Federal Court Rules 2011 (Cth) in relation to claims of misleading or deceptive conduct concerning the proposed promotion and supply of the respondent's products.

The court considered whether the applicant had satisfied the conditions in rule 7.23(1)(a) to justify the preliminary discovery. The court noted the inherent uncertainty in these preconditions, but did not see a basis to refuse relief based on a general assessment of uncertainty. The court examined the reasonableness of GSK's belief that the respondent's products were not bioequivalent to GSK's products, and whether the respondent had made potentially misleading or deceptive conduct or false representations to pharmacists and consumers. The court also considered whether GSK had made reasonable inquiries and whether the respondent controlled the material.

The court found that GSK was entitled to an order for preliminary discovery in relation to the ACL claims concerning the half-truth scenario or misleading or deceptive conduct. The court directed the parties to confer on the precise form of the preliminary discovery orders and stood the application over until 9.30 am on 13 November 2014. Costs were reserved. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.