Janssen-Cilag Pty Ltd v Pfizer Pty Ltd

Re: JANSSEN-CILAG PTY LIMITED
And: PFIZER PTY LIMITED
No. G340 of 1990
FED No. 649
Trade Practices
(1992) 14 ATPR 41-186
(1992) 37 FCR 526

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Trade Practices - Damages under Part V of the Trade Practices Act 1974 - whether reliance is necessary pre-condition for award of damages - whether competitor who suffers damage arising from contravention but has not relied on the contravening conduct is entitled to damages.

Trade Practices Act 1974 (Cth): s. 82.

HEARING

SYDNEY

#DATE 8:9:1992

Counsel for the Applicant and S.D. Robb and
Cross-Respondent: K. Howard

Solicitors for the Applicant and Michell Sillar McPhee and
Cross-Respondent: Meyer

Counsel for the Respondent and J.D. Heydon QC and
Cross-Claimant: I.M. Jackman

Solicitors for the Respondent and Freehill Hollingdale and
Cross-Claimant: Page

ORDER

THE COURT ORDERS THAT:

1. The question before the Court be answered as follows:

Question

Is paragraph 4 of the Defence to paragraphs 23A and 24 of the applicant's (Janssen's) further amended statement of claim a good answer in law to the claim in paragraph 16 of the application for damages?"

Answer

No.

2. Any argument on the question of costs of this hearing and any

further directions as to further conduct of a hearing on the question of damages be stood over to a date to be fixed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The question which arises for determination by the Court is whether entitlement to recover loss or damage under s. 82 of the Trade Practices Act 1974 ("the Act") is confined to a person who relied on the representation which constituted a contravention of a provision of Part IV or V of the Act.

1. The question arises in the context of a recent, but active, bout of litigation in this Court between the parties. On 24 September 1991 the Court found that certain representations made by the respondent, Pfizer Pty Limited ("Pfizer"), contravened s. 52 of the Act; and on 29 October 1991 the Court granted injunctions against Pfizer to restrain the further making of these representations. The question of damages, if any, sustained by the applicant, Janssen-Cilag Pty Limited ("Janssen"), was agreed to be tried separately from the question of liability which was determined by the Court on 24 September 1991. Directions were given from time to time by the Court, after the making of the orders of 29 October 1991, for the purpose of preparing the case on damages for hearing.

2. On 30 April 1992 Janssen filed a further amended statement of claim in which paragraphs 23A and 24 appear in these terms:
   

"23A. The making by the Respondent of the representations and each of them pleaded in paragraphs 7, 10, 13, 16, 19 and 20B hereof induced members of the public and pharmacists to purchase the Respondent's drug 'Combantrin' instead of the Applicant's drug 'Vermox' thereby causing the…