Juno Pharmaceuticals Pty Ltd v Millennium Pharmaceuticals, Inc

FEDERAL COURT OF AUSTRALIA

Juno Pharmaceuticals Pty Ltd v Millennium Pharmaceuticals, Inc

[2019] FCA 526

File number:

VID 988 of 2018

Judge:

BESANKO J

Date of judgment:

16 April 2019

Catchwords:

PRACTICE AND PROCEDURE — interlocutory application for leave to withdraw admissions — where the second respondent is registered as the owner of an Australian patent and as the exclusive licensee of an Australian patent — where the applicant supplies generic pharmaceutical products — where the applicant alleges that the second respondent’s patents are invalid on various grounds — where the second respondent cross-claims for patent infringement by the applicant’s generic products — where the applicant made certain admissions in its defence to the second respondent’s cross-claim — where the applicant now seeks to withdraw those admissions on the basis of an expert opinion

PRACTICE AND PROCEDURE — consideration of the principles relevant to whether to grant leave to withdraw an admission — consideration of the strength of the case now advanced that the admission is or may well be incorrect — whether the applicant has done all it could do to establish that the admission is incorrect — where the applicant could have, but has not yet, carried out an experiment which would or may well clarify whether the admission is incorrect — whether the applicant has acted in a transparent fashion — whether there has been a delay in making the application for leave to withdraw — whether the admission would have a significant impact on the respective cases of the parties if it is not withdrawn — consideration of case management principles and of the effect of the withdrawal of the admission on the trial date

Legislation:

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965

Cases cited:

Ansell Healthcare Products LLC v Reckitt Benckiser (Australia) Pty Ltd (No 2) [2016] FCA 765

AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Centrestate Exports Pty Ltd v Amarantos Shipping Co Ltd [2005] SASC 158

Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309; (2003) 204 ALR 327

Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; (2016) 332 ALR 199

Date of hearing:

27 March 2019

Registry:

Victoria

Division:

General Division

National Practice Area:

Intellectual Property

Sub-area:

Patents and associated Statutes

Category:

Catchwords

Number of paragraphs:

51

Counsel for the Applicant:

Mr T Cordiner QC with Mr C Smith

Solicitor for the Applicant:

Biopharmalex

Counsel for the First Respondent:

The First Respondent is excused from further participation in the proceedings until further order

Counsel for the Second Respondent:

Mr J S Cooke

Solicitor for the Second Respondent:

Davies Collison Cave Law Pty Ltd

ORDERS

VID 988 of 2018

BETWEEN:

JUNO PHARMACEUTICALS PTY LTD

Applicant

AND:

THE GOVERNMENT OF THE UNITED STATES OF AMERICA AS REPRESENTED BY THE SECRETARY, DEPARTMENT OF HEALTH AND HUMAN…