Murex Diagnostics Australia Pty Ltd v Chiron Corporation

[1995] FCA 1095

NOT SUITABLE FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )    NG 106 of 1994
  )
GENERAL DIVISION                 )

BETWEEN:MUREX DIAGNOSTICS AUSTRALIA PTY LIMITED

Applicant

AND:CHIRON CORPORATION

First Respondent

ORTHO DIAGNOSTIC SYSTEMS INC

Second Respondent

CHIRON CORPORATION

Cross-Claimant

MUREX DIAGNOSTICS AUSTRALIA PTY LIMITED

First Cross-Respondent

MUREX DIAGNOSTICS LIMITED

Second Cross-Respondent

CORAM: Burchett J.
PLACE: Sydney
DATE : 22 December 1995

REASONS FOR JUDGMENT

BURCHETT J.:

Mr Kerr has made an application for an adjournment of the hearing date, which is opposed.  The one ground on which the adjournment is sought comes down to the proposition that a Mr Blackburn, who is, and has been for some time, Director of Intellectual Property and Chief Patent Counsel for Chiron Corporation, desires, and the company desires, that he should be present during the hearing.  He and the company also desire that he should be present at a hearing in the United Kingdom which, if I adhere to the date presently fixed for this matter, will overlap with the date of the hearing here.

There has been some degree of uncertainty about the English date, and it is still not totally precise; but I accept that the considerable probability is that the English hearing will start either on 1 July or within a day or two thereafter, and it is likely to take between three and four weeks.  Mr Kerr suggests that it would be a matter of some prejudice to Chiron Corporation if it could not have Mr Blackburn present to instruct during each day of each hearing.  He is also a witness, at least in the proceeding here, but I do not think there is any difficulty about that because his evidence is not expected to take long and its scheduling could be organised without too much difficulty.

What is urged by Mr Kerr is that I should move the hearing date back to 5 August, which would allow a period of some five weeks in the first instance, and then, because it would not be possible to continue the hearing immediately after the expiration of those five weeks, resume it in mid-November.  An alternative proposal is to delay the start of the hearing until mid-November, in which case there would have to be a similar break in the hearing until some time next year.  One problem about either suggestion is that although Mr Kerr hopes that the evidence would be completed in a period of five weeks - so that there could be a neat break and the Court could, after the break, resume with the hearing of argument - the fact is that five weeks for the hearing of the evidence is rather less than the time that was originally estimated and might prove too tight to be achievable. 

Mr Catterns, for the companies Murex Diagnostics Australia Pty Limited and Murex Diagnostics Limited, opposes the application.  He suggests that the matter of instructions from Mr Blackburn could be solved by the giving of all necessary instructions as to the plan of campaign of Chiron Corporation in advance of the hearing and, during so much of the hearing as it would be necessary for him to be in England, by regular communication with him by the various electronic means, including conference telephone discussions, which nowadays are available.  Nevertheless, he acknowledges that there would be some prejudice to Chiron Corporation, but he says that that would be more than counter-balanced by prejudice to his clients which would arise from the cost and difficulty inherent in split hearings, and in addition, from the significant delay in the finalisation of the matter, which would be almost inevitable.

Such delay would, I infer in the circumstances, be likely to cause damage to the Murex companies in more than one way.  Plainly, the pendency of these proceedings must be causing some degree of disruption to their business, and furthermore, the build-up of potential damages, should they ultimately lose, will continue during the whole of any period of delay in the hearing.  It seems to me they have a very real interest in the matter being determined as soon as is practicable.  Indeed, I think both parties, up to the present time, have shown an awareness of the need for the matter to be handled with all proper expedition, consistently with the vast amount of work that was necessary, and will continue to be necessary, for the preparation of so complex and difficult a matter.

I acknowledge that the decision of the application is not an easy one, but I think that the proper balance of those factors must favour the Murex companies.  It seems to me that the prejudice to them in potentially significant sums of damages is a solid prejudice, which outweighs whatever difficulty may possibly be encountered in the delivery of day-to-day instructions during what I think would be a part only of the hearing.  I would expect Mr Blackburn's unavailability to be sandwiched between a preliminary period when he would be fully available and a later period when he would again become available, on the probabilities, and during that sandwiched period, it seems to me that practical alternative means of communicating with him quite regularly could and would be worked out.

I also think I should bear in mind that, not only must I have regard to the requirements of the efficient administration of the court itself in the wider interests of the community and of other litigants, but I should also have regard to the considerable likelihood that any variation in the hearing dates would, in this complicated matter, involving a large number of very busy and highly qualified people from various parts of the world, have its own attendant difficulties for one or other of the parties.  That is a smaller issue than the other considerations, but it should not be entirely overlooked.  Accordingly, I decline to vary the hearing date.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 8 January 1996

Counsel for the Applicant:        Mr D K Catterns QC with Mrs A Bennett SC

Solicitors for the Applicant:     Banki Palombi Haddock & Fiora

Solicitor for the Respondents:     Mr P Kerr of Allen Allen & Hemsley

Dates of hearing:                22 December 1995