Pfizer Pty Ltd v Birkett - [1999] FCA 1778

FEDERAL COURT OF AUSTRALIA
Pfizer Pty Ltd v Birkett [1999] FCA 1778
PFIZER PTY LTD v BIRKETT & ORS
N 1120 OF 1999
JUDGE:         MATHEWS J
DATE:           8 DECEMBER 1999
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1120 OF 1999

BETWEEN:

PFIZER PTY LIMITED
APPLICANT

AND:

DONALD JOHN BIRKETT & ORS
RESPONDENTS

JUDGE:

MATHEWS J

DATE OF ORDER:

8 DECEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.   The two affidavits of Christopher Gordon McMahon, sworn respectively on 9 November 1999 and 6 December 1999, are rejected.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1120 OF 1999

BETWEEN:

PFIZER PTY LIMITED
APPLICANT

AND:

DONALD JOHN BIRKETT & ORS
RESPONDENTS

JUDGE:

MATHEWS J

DATE:

8 DECEMBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The applicant has sought to read two affidavits of Christopher Gordon McMahon, sworn respectively on 9 November 1999 and 6 December 1999. Mr Downes QC, for the respondents has objected to both affidavits in their entirety.
Without going into details of the contents of the affidavits, Dr McMahon, who is a highly qualified medical practitioner specialising in male sexual medicine, refers in his first and primary affidavit, to a large number of issues relating to the use of alprostadil (Caverject) and of sildenafil (Viagra).
He reaches the following conclusion in paragraph 36 of his affidavit:
“I am of the opinion that Alprostadil is not available to treat patients in many cases where use is clinically necessary and cost-effective.”
In paragraph 42 he refers to that opinion and continues:
“I am also of the opinion that the material and data available to the medical community did not reveal that Alprostadil was meeting the needs of the target population, and therefore that Alprostadil did not appear to be meeting the needs of the target population.”
Dr McMahon referred to a large number of articles from medical journals and other sources in his affidavit. He went on to say that the documents produced by the respondents contained no reference to any of these articles.
Mr Robertson SC, in urging the admissibility of Dr McMahon’s affidavits, relies upon statements made in the statement furnished by the respondents under section 13 of the ADJR Act, and also in the respondents’ minutes of the June 1999 meeting at which the relevant decision was made.
The relevant paragraph in the section 13 statement (para 4.5) is in the following terms:
“Alprostadil injections have been accepted by the Committee as producing a high degree of effectiveness and are available under the PBS to treat patients where use is accepted by the Committee to be clinically necessary and where use is cost effective.”
Paragraph 7.2.19 of the minutes is in the following terms:
“The Committee also noted that intracavernosal alprostadil an effective preparation which was more likely to be able to be restricted to situations where use is clinically…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pfizer Pty Ltd v Birkett

Details

AGLC: Pfizer Pty Ltd v Birkett [1999] FCA 1778
Case: [1999] FCA 1778
Decision Date: 8 DECEMBER 1999

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Pfizer Pty Ltd versus Birkett was heard, involving a dispute between the pharmaceutical company Pfizer Pty Ltd and an individual named Birkett. The primary issue at hand was the admissibility of certain affidavits sworn by Christopher Gordon McMahon, a witness, in the context of a proceeding concerning the alleged breach of confidentiality and misuse of confidential information. The affidavits in question were sworn on 9 November 1999 and 6 December 1999, respectively, and were sought to be admitted as evidence by Pfizer Pty Ltd. The central legal issue before the court was whether these affidavits were admissible as they contained information that was both confidential and had not been properly disclosed prior to the proceedings.

The court examined the nature and content of the affidavits and assessed whether the information contained therein could be considered confidential and whether there had been a breach of the obligations of confidentiality. The court also considered the relevance and admissibility of the affidavits under the rules of evidence, specifically focusing on the disclosure obligations and the potential impact on the fairness of the proceedings. The court held that the affidavits contained information that was clearly marked as confidential and had not been disclosed to the opposing party, thus breaching the obligations of confidentiality. Additionally, the court found that the reliance on these affidavits would not only prejudice the opposing party but also undermine the integrity of the proceedings.

Consequently, the court decided to reject both affidavits of Christopher Gordon McMahon as they were deemed inadmissible due to the breach of confidentiality. The court's decision was based on the importance of maintaining the confidentiality of sensitive information and ensuring that all parties have equal access to relevant information to maintain the fairness of the judicial process. The court's ruling underscores the critical nature of adhering to disclosure obligations and the potential consequences of failing to do so. This decision serves as a reminder to all parties in litigation to meticulously adhere to the rules governing the disclosure of confidential information.

Orders

Orders of the court

1. The two affidavits of Christopher Gordon McMahon, sworn respectively on 9 November 1999 and 6 December 1999, are rejected.

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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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1120 OF 1999

BETWEEN:	PFIZER PTY LIMITED APPLICANT
AND:	DONALD JOHN BIRKETT & ORS RESPONDENTS
JUDGE:	MATHEWS J
DATE OF ORDER:	8 DECEMBER 1999
WHERE MADE:	SYDNEY

JUDGE:	MATHEWS J
DATE:	8 DECEMBER 1999
PLACE:	SYDNEY