FEDERAL COURT OF AUSTRALIA
Novartis Pharmaceuticals Australia Pty Ltd v Bayer Australia Limited (No 3) [2013] FCA 1323
Citation: Novartis Pharmaceuticals Australia Pty Ltd v Bayer Australia Limited (No 3) [2013] FCA 1323 Parties: NOVARTIS PHARMACEUTICALS AUSTRALIA PTY LTD (ACN 004 244 160) v BAYER AUSTRALIA LIMITED (ACN 000 138 714) File number: NSD 314 of 2013 Judge: ROBERTSON J Date of judgment: 6 December 2013 Catchwords: PRACTICE AND PROCEDURE – application by respondent to withdraw admissions – relevant factors – interests of justice Legislation: Federal Court of Australia Act 1976 (Cth) s 37M
Federal Court Rules 2011(Cth) rr 16.06, 26.11
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2007] FCA 1390
Celestino v Celestino [1990] FCA 299
Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327
Optical 88 Limited v Optical 88 Pty Limited [2010] FCA 310
Silver v Dome Resources NL [2005] NSWSC 265
SLE Worldwide v WGB [2005] NSWSC 816Date of hearing:
13, 25 November 2013
Date of last submissions: 28 November 2013
Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: Dr AS Bell SC with Ms E Holmes Solicitor for the Applicant: Clayton Utz Counsel for the Respondent: Mr R Lancaster SC with Ms K Richardson and Ms J Wright Solicitor for the Respondent: Minter Ellison Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 314 of 2013
BETWEEN: NOVARTIS PHARMACEUTICALS AUSTRALIA PTY LTD (ACN 004 244 160)
ApplicantAND: BAYER AUSTRALIA LIMITED (ACN 000 138 714)
Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
6 DECEMBER 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave be granted to the respondent to withdraw its admissions in accordance with the proposed Notice of withdrawal of pleading annexed to its interlocutory application filed on 31 October 2013.
2.The respondent pay the costs thrown away by the withdrawal of the admissions.
3.Each party bear its own costs of and incidental to the interlocutory application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 314 of 2013
BETWEEN: NOVARTIS PHARMACEUTICALS AUSTRALIA PTY LTD (ACN 004 244 160)
ApplicantAND: BAYER AUSTRALIA LIMITED (ACN 000 138 714)
Respondent
JUDGE:
ROBERTSON J
DATE:
6 DECEMBER 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The respondent, Bayer, by interlocutory application filed on 31 October 2013, seeks to withdraw certain admissions in accordance with a “Notice of withdrawal of pleading” dated 31 October 2013.
I shall grant that leave, for the reasons which follow. Bayer must pay the costs thrown away by the withdrawal of the admissions. Each party should bear its own costs of and incidental to the interlocutory application.
These reasons should be read with my earlier reasons in Novartis Pharmaceuticals Australia Pty Ltd v Bayer Australia…
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- AGLC
- Novartis Pharmaceuticals Australia Pty Ltd v Bayer Australia Limited (No 3) [2013] FCA 1323
- Case
- [2013] FCA 1323
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether Bayer should be permitted to withdraw admissions it had made in the litigation process. The court had to consider various factors to determine if such a withdrawal would be in the interests of justice. These factors included the timing of the application, the reasons provided for the withdrawal, the potential prejudice to the opposing party, and the overall fairness of the proceedings. The court also needed to balance Bayer's right to amend its pleadings against the potential disruption and costs to Novartis if the admissions were withdrawn.
The court determined that the application should be granted, allowing Bayer to withdraw its admissions. The reasoning was grounded in the principle that the interests of justice should be the paramount consideration. The court found that Bayer had provided sufficient justification for the withdrawal, and the timing, while not ideal, did not significantly prejudice Novartis. Additionally, the court noted that the broader interests of justice, including the need for fair and efficient litigation, supported the withdrawal. Consequently, the court ordered that Bayer could withdraw its admissions, but it would bear the costs associated with the withdrawal. Each party was also directed to bear its own costs for the interlocutory application.
The final orders included granting leave for Bayer to withdraw its admissions, requiring Bayer to pay the costs incurred by the withdrawal, and directing each party to bear its own costs for the interlocutory application. These orders reflect the court's careful consideration of the procedural and substantive implications of permitting a party to retract previously made admissions.
Orders
Orders of the court
1. Leave be granted to the respondent to withdraw its admissions in accordance with the proposed Notice of withdrawal of pleading annexed to its interlocutory application filed on 31 October 2013.
2. The respondent pay the costs thrown away by the withdrawal of the admissions.
3. Each party bear its own costs of and incidental to the interlocutory application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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