iNova Pharmaceuticals (Australia) Pty Ltd v Letos Group Pty Ltd (No 2)
[2022] FedCFamC2G 1083
Federal Circuit and Family Court of Australia
(DIVISION 2)
iNova Pharmaceuticals (Australia) Pty Ltd v Letos Group Pty Ltd (No 2) [2022] FedCFamC2G 1083
File number(s): SYG 3343 of 2019 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 16 December 2022 Catchwords: INTELLECTUAL PROPERTY – Practice and procedure – application to adjourn pronouncement of orders and delivery of judgment pending consideration of additional material sent to Judge’s Associate’s inbox without leave – application dismissed. Division: General Number of paragraphs: 8 Date of hearing: 16 December 2022 Place: Sydney Solicitor for the Applicants: Ms R Smith of Gilbert + Tobin The Fourth, Fifth, Sixth, Seventh, Eleventh, Twelfth, Thirteenth, and Fourteenth Respondents: No appearance by, or on behalf of, the Fourth, Fifth, Sixth, Seventh, Eleventh, Twelfth, Thirteenth, and Fourteenth Respondents The Fifteenth, Sixteenth, and Twentieth Respondents: Appeared in person, with the assistance of an interpreter ORDERS
SYG 3343 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: INOVA PHARMACEUTICALS (AUSTRALIA) PTY LTD ACN 617 871 539
First Applicant
INOVA PHARMACEUTICALS (SINGAPORE) PTE. LIMITED UEN 200617543H
Second Applicant
AND: LETOS GROUP PTY LTD ACN 623 106 561
Fourth Respondent
LIYAN LIANG
Fifth Respondent
C&J AUS GROUP PTY LTD ACN 617 599 961 (and others named in the Schedule)
Sixth Respondent
order made by:
JUDGe manousaridis
DATE OF ORDER:
16 december 2022
THE COURT ORDERS THAT:
1.The application by the fifteenth, sixteenth, and twentieth respondents that the pronouncement of orders be postponed pending the Court’s consideration of the material contained in and attached to the email sent by the sixteenth respondent to the associate to Judge Manousaridis at 11:14 pm on 15 December 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Revised from transcript)
On 27 September 2022 I heard an application for summary judgment against a number of respondents, including the fifteenth, sixteenth, and twentieth respondents (respondents). The respondents appeared at the hearing without the assistance of legal representation. They were, however, assisted by an interpreter. At the conclusion of the hearing the respondents requested an opportunity to file further material. I granted that request by directing that they do so by 5 October 2022.
The respondents filed material on 5 October 2022.[1] Without leave, the respondents filed additional material on 14 October 2022.[2] I had listed for judgment the application for summary judgment on a number of different days, but adjourned that listing to give me further time to complete my reasons for judgment. Ultimately, the matter was listed for judgment today, that is to say, 16 December 2022.
[1] This is incorrect. The respondents sent the material by email to my associate’s inbox.
[2] This is incorrect. The respondents sent the additional material by email to my associate’s inbox.
At 11:14 pm on 15 December 2022 Ms Xue, the sixteenth respondent, sent an email to my associate’s inbox. It not being the usual working hours of my associate, the email was brought to my attention this morning. I have marked this email and its attachments as “MFI2”. The email attaches two documents, the first being a submission. The submission is directed to a number of invoices, and there is a table which contains some form of analysis of the invoices.
When the matter was called I indicated to the respondents and to Ms Smith, who appears for the applicants, that I would deal with this email before I would turn to consider whether I should pronounce orders and publish my reasons for judgment. I asked Ms Xue what it was that she was asking me to do in relation to the email she had sent on 15 December 2022. After some discussion Ms Xue asked that I defer the delivery of my judgment so that I could consider the material attached to the email she sent to my associate.
I asked Ms Xue why it was that she waited until 11:14 pm on the night before I was due to give judgment to provide this material. The effect of Ms Xue’s answer was that her mind was not clear, and she has not had legal representation. The question, therefore, is whether I should defer making the orders and publishing the reasons for judgment I intended to pronounce and publish this morning. That question must be answered in the negative.
The respondents have had ample time to put before the Court the material they wish the Court to address, and I am not referring only to the leave I granted them at the conclusion of the hearing of 27 September 2022 to put on further material. The respondents have been aware of this proceeding and the claims against them for some time. It is wholly unacceptable for any party, represented or not, to put before a court, hours before the publication of reasons for judgment, material which they had an opportunity to put on well before the day on which the judgment is due to be delivered. For that reason alone the application that Ms Xue made this morning that I defer giving my judgment pending my consideration of the additional material she has provided will be dismissed.
Quite apart from that, I have taken the limited opportunity I had this morning to see and read the material. I do not pretend to have fully absorbed what is in the material or at least what is intended to be achieved by that material if I were to consider it; but it is clear it is directed to a number of invoices. These are invoices that were the subject of the material the respondents filed on 5 and 14 October 2022;[3] and they are invoices that are the subject of consideration by me in the reasons for judgment which I propose to publish in a moment.
[3] As I note above the respondents emailed the material to my associate’s inbox.
Acknowledging that I have had only a limited time to consider the material in the email Ms Xue sent on 15 December 2022, I can say that the material in the email does not give rise in my mind to any need to reconsider what I have already considered in the reasons for judgment that I will be publishing in a moment. I am not satisfied that there would be any utility in my deferring delivering my reasons for judgment. Therefore, I will now make a formal order in relation to the application made by respondents.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 1 March 2023
SCHEDULE OF PARTIES
SYG 3343 of 2019 Respondents
Seventh Respondent:
TAIYI CHANG
Eleventh Respondent:
JUN WEI PTY LTD ACN 616 977 096
Twelfth Respondent:
NINGNING WEI
Thirteenth Respondent:
LI BIN
Fourteenth Respondent:
FY HEALTH PTY LTD ACN 629 197 315
Fifteenth Respondent:
XIPING HE
Sixteenth Respondent:
MINGFANG XUE
Twentieth Respondent:
YUAN HE
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