Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (No 2)
[2011] FCAFC 143
•11 November 2011
FEDERAL COURT OF AUSTRALIA
Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (No 2) [2011] FCAFC 143
Citation: Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (No 2) [2011] FCAFC 143 Appeal from: Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2010] FCA 1211 Parties: SIGMA PHARMACEUTICALS (AUSTRALIA) PTY LIMITED ACN 004 118 594 v WYETH AND WYETH AUSTRALIA PTY LIMITED ACN 000 296 211
ALPHAPHARM PTY LIMITED ACN 002 359 739
v WYETH AND WYETH AUSTRALIA PTY LIMITED ACN 000 296 211GENERIC HEALTH PTY LTD ACN 110 617 859
v WYETH AND WYETH AUSTRALIA PTY LIMITED ACN 000 296 211File numbers: NSD 1533 of 2010
NSD 1603 of 2010
NSD 1644 of 2010Judges: BENNETT, NICHOLAS AND YATES JJ Date of judgment: 11 November 2011 Date of hearing: Determined on the papers Date of last submissions: 8 November 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 4 Counsel for the First Appellant: Mr D Shavin QC with Ms H Rofe Solicitor for the First Appellant: Griffith Hack Counsel for the Second Appellant: Mr P Flynn Solicitor for the Second Appellant: Mallesons Stephen Jaques Counsel for the Third Appellant: Ms A Bowne SC Solicitor for the Third Appellant: Middletons Counsel for the Respondents: Mr C Dimitriadis Solicitor for the Respondents: Jones Day
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1533 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: SIGMA PHARMACEUTICALS (AUSTRALIA) PTY LTD ACN 004 118 594
AppellantAND: WYETH
First RespondentWYETH AUSTRALIA PTY LIMITED ACN 000 296 211
Second Respondent
JUDGES:
BENNETT, NICHOLAS AND YATES JJ
DATE OF ORDER:
11 NOVEMBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Order 7 of the orders of Justice Jagot made on 8 November 2010 be set aside.
3.The appeal be listed for further hearing in relation to all other outstanding issues at 9.00 am on 23 November 2011.
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 1603 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: ALPHAPHARM PTY LIMITED ACN 002 359 739
AppellantAND: WYETH
First RespondentWYETH AUSTRALIA PTY LIMITED ACN 000 296 211
Second Respondent
JUDGES:
BENNETT, NICHOLAS AND YATES JJ
DATE OF ORDER:
11 NOVEMBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Order 7 of the orders of Justice Jagot made on 8 November 2010 be set aside.
3.The appeal be listed for further hearing in relation to all other outstanding issues at 9.00 am on 23 November 2011.
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 1644 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: GENERIC HEALTH PTY LTD ACN 110 617 859
AppellantAND: WYETH
First RespondentWYETH AUSTRALIA PTY LIMITED ACN 000 296 211
Second Respondent
JUDGES:
BENNETT, NICHOLAS AND YATES JJ
DATE OF ORDER:
11 NOVEMBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Order 7 of the orders of Justice Jagot made on 8 November 2010 be set aside.
3.The appeal be listed for further hearing in relation to all other outstanding issues at 9.00 am on 23 November 2011.
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 1533 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: SIGMA PHARMACEUTICALS (AUSTRALIA) PTY LTD ACN 004 118 594
AppellantAND: WYETH
First RespondentWYETH AUSTRALIA PTY LIMITED ACN 000 296 211
Second Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1603 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: ALPHAPHARM PTY LIMITED ACN 002 359 739
AppellantAND: WYETH
First RespondentWYETH AUSTRALIA PTY LIMITED ACN 000 296 211
Second Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1644 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: GENERIC HEALTH PTY LTD ACN 110 617 859
AppellantAND: WYETH
First RespondentWYETH AUSTRALIA PTY LIMITED ACN 000 296 211
Second Respondent
JUDGES:
BENNETT, NICHOLAS AND YATES JJ
DATE:
11 NOVEMBER 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
Pursuant to orders made on 28 October 2011 the parties have filed written submissions in relation to the orders that they contend should be made in light of the reasons for judgment delivered in this matter (Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2011] FCAFC 132). Most of the matters the subject of those submissions are straightforward and would ordinarily be dealt without any further oral argument. However, a number of the points raised in the submissions are out of the ordinary and it is appropriate that there be a further hearing of short duration to give the parties the opportunity they seek to develop their written submissions orally.
In its written submissions Wyeth also sought the opportunity to file affidavit evidence, though it did not identify the nature of that evidence or to what issue it would be directed. In the circumstances, we are not disposed to permit the filing of any affidavit evidence.
The orders we propose to make today will allow the appeal in each matter and set aside the injunctions granted by the primary judge. All other questions concerning orders for the revocation of claims, inquiries as to damages and costs as well as the terms to be imposed in connection with any stay of orders for revocation will be decided following the further hearing.
There will be orders accordingly.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Bennett, Nicholas and Yates. Associate:
Dated: 11 November 2011
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