Xing Technologies Pty Ltd v Integrated Clinical Oncology Network Pty Ltd
[2017] FCA 1495
•12 December 2017
FEDERAL COURT OF AUSTRALIA
Xing Technologies Pty Ltd v Integrated Clinical Oncology Network Pty Ltd [2017] FCA 1495
File number: QUD 252 of 2017 Judge: BESANKO J Date of judgment: 12 December 2017 Catchwords: PRACTICE AND PROCEDURE – consideration of an application for pre-action discovery under r 7.23 of the Federal Court Rules 2011 (Cth) – where the prospective applicant alleges the prospective respondent has engaged in misleading and deceptive conduct by making a false statement about the death of a patient in a complaint to the University of Queensland – where the prospective applicant seeks documents relevant to the prospective respondent’s intention in making the complaint – where the documents sought are not said to be relevant to any other element of the causes of action identified by the prospective applicant – where the prospective respondent’s intention is not an essential element of the claim for misleading and deceptive conduct – where the elements of causation and loss and damage are not so weak as to lead to the conclusion that the requirements in r 7.23(1)(a) of the Rules are not met.
PRACTICE AND PROCEDURE – where the prospective applicant alleges the prospective respondent has committed the tort of intentionally procuring or inducing a breach of contract – whether the prospective applicant has reasonable grounds to believe that it has the right to obtain relief in relation to this cause of action – where the prospective applicant has not identified a breach of contract by the University of Queensland or Uniquest Pty Ltd which has caused loss or damage to the prospective applicant.
PRACTICE AND PROCEDURE – whether the prospective applicant has adduced all the information they have in relation to the claims – where a final report of the Research Misconduct Inquiry was not put before the Court, on the explanation that the prospective applicant was not at liberty to disclose the report without permission from the University of Queensland.
Legislation: Competition and Consumer Act 2010 (Cth), Schedule 2, s 18
Federal Court Rules 2011 (Cth) r 7.23
Cases cited: Allstate Life Insurance Company and Others v Australia and New Zealand Banking Group Ltd and Others (1995) 58 FCR 26
Apache Northwest Pty Ltd v Newcrest Mining Ltd (2009) 182 FCR 124
Cadbury Schweppes Pty Ltd and Others v Pub Squash Co Ltd [1981] RPC 429
Campomar Sociedad, Limitada and Another v Nike International Limited and Another (2000) 202 CLR 45
Daebo Shipping Company Ltd v The Ship Go Star (2012) 207 FCR 220
D C Thomson & Co Ltd v Deakin [1952] Ch 646
Ebos Group Pty Ltd v Team Medical Supplies Pty Ltd [2011] FCA 862
Glencore International AG v Selwyn Mines Limited [2005] FCA 801; (2005) 223 ALR 238
Gould and Another v Vaggelas and Others (1985) 157 CLR 215
Henville and Another v Walker and Another (2001) 206 CLR 459
Hornsby Building Information Centre Proprietary Limited v Sydney Building Information Centre Limited (1978) 140 CLR 216
I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited (2002) 210 CLR 109
LED Technologies Pty Ltd v Roadvision Pty Ltd and Another (2012) 199 FCR 204
Lumley v Gye (1853) 2 El & Bl 216; (1853) 118 ER 749
Optiver Australia Pty Ltd v Tibra Trading Pty Ltd and Others (2008) 169 FCR 435
S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 88 FCR 354
Date of hearing: 18 August 2017 Registry: Queensland Division: General Division National Practice Area: Intellectual Property Sub-area: Patents and associated Statutes Category: Catchwords Number of paragraphs: 80 Counsel for the Prospective Applicant: Mr C Wilson Solicitor for the Prospective Applicant: Hall Payne Lawyers Counsel for the Prospective Respondent: Ms R Nichols Solicitor for the Prospective Respondent: McCullough Robertson Lawyers ORDERS
QUD 252 of 2017 BETWEEN: XING TECHNOLOGIES PTY LTD ACN 165 218 520
Prospective Applicant
AND: INTEGRATED CLINICAL ONCOLOGY NETWORK PTY LTD ACN 151 293 891
Prospective Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
12 DECEMBER 2017
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
INTRODUCTION
This is an application for pre-action discovery under r 7.23 of the Federal Court Rules 2011 (Cth) (the Rules). The prospective applicant is Xing Technologies Pty Ltd (Xing) and the prospective respondent is Integrated Clinical Oncology Network Pty Ltd (ICON).
Xing is a company which was established to commercialise three technologies invented by Professor Mathius Trau at the Trau Laboratory. The Trau Laboratory is part of the Australian Institute for Bioengineering and Nanotechnology (AIBN) at the University of Queensland (UQ). Professor Trau is a Professor of Chemistry at UQ and the Deputy Director of the AIBN. The directors of Xing are Professor Trau and Dr Paul Mainwaring.
The UQ holds patents for the three technologies. UQ granted a licence for the three patented technologies to Uniquest Pty Ltd (Uniquest). Uniquest is the “commercialisation company” for UQ. Xing has entered into a contract whereby it is the exclusive sub-licensee for the three patented technologies. The contract provides for an exclusive worldwide sub-licence to commercialise the three patented technologies and for the undertaking of a research program at the university to validate the three patented technologies which must use the services of Professor Trau.
The three patented technologies licensed by UQ to Uniquest are described in the affidavit of Xing’s solicitor (Mr Luke Forsyth) as follows:
(a)Nan-scFv’s: a new protein affinity/capture reagent (jointly developed with Seattle Biomed) designed to capture proteins (Patent 1);
(b)Nan-shearing: Novel nan-fluidic technology to capture cells and particle-scale objects using electric field effects near surfaces (Patent 2);
(c)Single Drop Genomics: Novel point of care detection system for DNA/RNA via a physical chemistry method known as bridging flocculation (Patent 3).
Professor Trau gave instructions to Mr Forsyth that the three patented technologies have the following commercial applications:
(a)Patent 1: The modern diagnostics industry, which includes human, veterinary and agriculture, is a multi-billion dollar global industry which requires the detection of trace proteins in samples, such as blood. This technology provides an entirely new way to achieve such diagnostics which will be cheaper and more accurate and allows point-of-care testing on site (point-of-care) removing the present necessity for samples to be shipped to a laboratory for analysis;
(b)Patent 2: A major problem in modern diagnostics industry is false positive results brought about by non-specific capture of molecules, cells or other analytes. This technology uses a highly innovative nano-fluidic approach to solve this problem and also allows point-of-care.
(c)Patent 3: The vast majority of modern diagnostics are carried out with need for a full laboratory and large scale and expensive equipment. This technology miniaturises an entire laboratory within one droplet of fluid allowing for laboratory based tests to be easily performed anywhere remotely at point-of-care.
Professor Trau also gave instructions to Mr Forsyth that he believes that the three patented technologies have a wide commercial application, including in human, veterinary and agricultural diagnostics, and also biosecurity and aerospace applications.
ICON operates cancer treatment centres throughout Australia. In about June 2011, it acquired the shares in Haematology and Oncology Clinics of Australia and, therefore, the clinics of that organisation. Until October 2016, Dr Mainwaring was a shareholder in the company which was ICON’s holding company, ICON Consolidated Holdings Pty Ltd. ICON facilitates clinical research activities by supporting research organisations and visiting medical officers. It does this partly through the ICON Cancer Foundation which was previously known as the HOCA Research Foundation.
Professor Trau and Dr Mainwaring were the principal investigators of a research program which was called “A Quality Assurance Program of New Technologies and Cancer Diagnostics” (QA1). At the time of the events in question, Dr Mainwaring was a medical oncologist who operated his private oncology practice at rooms in ICON’s premises. Dr Mainwaring is an Adjunct Professor of the AIBN. The broad purpose of QA1 was to undertake quality assurance research in relation to Next Generation DNA Sequencing (NGS) technologies to determine the validity of the results NGS technologies were producing. NGS is also known as high-throughput sequencing and is the catch-all term used to describe a number of different DNA sequencing technologies. In order to test the validity of the NGS technologies in QA1, tumour samples were obtained from pathology laboratories with the consent of patients and “sequenced” in the Trau Laboratory at UQ. The research did not have any purposes related to the treatment of participating patients.
Professor Trau and Dr Mainwaring were also to be principal investigators of a research project called “A Second Quality Assurance Program of New Technologies in Cancer Diagnostics” (QA2). QA2 was designed to take advantage of research in QA1 regarding the validity of NGS sequencing results of tumours and to begin sampling blood, urine, sputum and tumour samples with multiple techniques to match them to each other. The research project called QA2 was not undertaken.
On 9 April 2015, ICON wrote to UQ raising concerns it had about the conduct of QA1 and QA2. UQ referred to this letter in subsequent documents as the ICON complaint and I will use that description. On Xing’s case, the ICON complaint led to a course of events which resulted in loss and damage to it. On 6 August 2016, UQ advised Xing that it had suspended further research projects that may be undertaken through Uniquest in connection with the two studies (Xing Contract Ban). Xing’s case is that the Xing Contract Ban was lifted on 13 August 2015, but reimposed on 23 September 2015. Furthermore, on 17 September 2015, UQ imposed a human tissue ban (Human Tissue Ban) on Xing (see [39] below).
Xing’s case is that these Bans resulted from conduct by ICON and caused loss and damage to Xing.
Xing alleges that it has or may have two causes of action against ICON. The first cause of action identified by Xing is a claim for misleading and deceptive conduct contrary to s 18 of the Australian Consumer Law (Competition and Consumer Act 2010 (Cth), Schedule 2) (ACL). The misleading and deceptive conduct is said to be a false statement made by ICON in the ICON complaint about the death of a patient. It was as follows:
… In essence, we have a number of major concerns regarding the conduct of the trial:
…
5.The scope of initial ethics approvals limiting the study to 50 patients with subsequent expansion beyond 600 patients without prospective explanation or approval. Subsequent reporting of serious protocol breaches including adverse events has been poor (with one patient death as a result of therapy not authorised by the trial but reliant on its unvalidated results).
(Emphasis added.)
Xing submits that the statement concerning the death of a patient in the circumstances identified was misleading and deceptive and (it may be inferred) would have had a significant impact on UQ. The first cause of action identified by Xing is undoubtedly within federal jurisdiction.
In evidence filed before the application was heard, there was reference by Xing to the tort of injurious falsehood, but an argument based on that cause of action was not pursued by Xing on the hearing of the application.
The second cause of action identified by Xing is the tort of intentionally procuring or inducing a breach of the contract between Xing and UQ/Uniquest. Putting the matter generally at this stage, this cause of action is within the jurisdiction of this Court if it is part of the same matter as the claim for misleading and deceptive conduct.
Xing’s application is made under r 7.23 of the Rules which is in the following terms:
(1)A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant:
(a)reasonably believes that he or she may have the right to obtain relief in the Court from a prospective respondent whose description has been ascertained; and
(b)after making reasonable inquiries, does not have sufficient information to decide whether to start a proceeding in the Court to obtain that relief; and
(c) reasonably believes that:
(i)the prospective respondent has or is likely to have or has had or is likely to have had in the prospective respondent's control documents directly relevant to the question whether the prospective applicant has a right to obtain the relief; and
(ii)inspection of the documents by the prospective applicant would assist in making the decision.
(2)If the Court is satisfied about matters mentioned in subrule (1), the Court may order the prospective respondent to give discovery to the prospective applicant of the documents of the kind mentioned in subparagraph (1) (c) (i).
The documents which Xing seeks are documents which fall into the following categories:
(a)a copy of all documents exchanged between ICON and UQ in relation to the ICON complaint and the matter raised therein;
(b) a copy of all Board Minutes, Agendas and Board Documents:
(i)connected to the decision by the Board of ICON to make the complaint; and/or
(ii) referring to Xing;
(c)a copy of all email communications between members of the Board of ICON and its officers, contractors and clinicians, in relation to investigations by ICON into the QA1 and QA2 studies, being the subject of the ICON complaint to UQ and the matter raised therein;
(d)a copy of all email communications between members of the Board of ICON and officers, contractors and clinicians, in relation to the ICON complaint and the matter raised therein;
(e)copies of all email communication between members of the Board of ICON and officers, contactors (sic) and clinicians, in respect of Xing.
It is important to note that the documents sought by Xing are said by it to be relevant to ICON’s intention in making the ICON complaint and, in particular, the statement about the death of a patient. They are not said by Xing to be relevant to any other element of the causes of action identified by it.
THE RELEVANT FACTS
A summary of the relevant facts is as follows. A number of facts are established by the documents and are not in dispute. I am not making findings as to disputed facts at this stage. I will set out the events in chronological order, save that I will deal with the facts relating to the Xing Contract Ban and the damage Xing claims that it has suffered separately at the end of this section.
On or about 17 December 2014, ICON advised Dr Mainwaring that it was seeking information about a number of matters concerning the QA1 study. Those matters were identified by ICON as follows:
(1)Whether the research was being conducted on ICON premises;
(2)Whether the research had been approved by the ICON Cancer Research Foundation Management Committee (ICON Research Committee);
(3)The patient information consent sheets; and
(4)The declarations of financial interests in commercial activities required as part of the research.
On 27 January 2015, Dr Mainwaring provided to ICON the relevant ethics documents, including the original approval, progress reports and extension approvals. At about this time, Dr Mainwaring commenced preparing to submit QA2 to the ICON Research Committee.
On 9 February 2015, ICON advised Dr Mainwaring that it had established a review panel to address a number of complaints. ICON sent Dr Mainwaring a number of questions for him to address. The second paragraph of ICON’s letter identifies in general terms its concerns at that stage. It is as follows:
It is my understanding that the above study has not been approved by the Icon Cancer Foundation Research Management Committee (ICFRMC) and a number of patients have received clinical interventions as a result of the QAP research study. In addition, to the (sic) these issues we need to confirm that no other studies are being undertaken without ICFRMC approval at Icon facilities and address the declaration of conflicts of interest with Bellberry and patient participants.
On 12 February 2015, Dr Mainwaring responded to ICON’s letter. As to clinical intervention in the treatment of patients as a result of the QA1 study, Dr Mainwaring said the following:
I enclose details of the correspondence of one patient whom we treated according to the results of our technology. Any patient for whom we have results that meet our quality criteria have had, in line with their wishes and the protocol, a discussion of treatment options. As you will be aware there are many more molecular aberrations we identify than treatment options under the PBS. There are common aberrations where new approaches including targeting downstream pathway or across pathway strategies are in place. Access for these is, too, extremely limited in Australia. Hence, any corroborative data we may have is discussed in light of clinical trial data, i.e. risks, benefits, side effects, toxicities, most of which is unfortunately not undertaken by ICON. Costs are taken from our internal pharmacy prescribing and our pharmacists.
On 16 February 2015, Dr Mainwaring attended a meeting of the ICON Review Panel. The use of the results of the QA1 study for clinical intervention in the treatment of patients was raised, but, as I understand Dr Mainwaring’s evidence, not the fact that it may have caused the death of a patient.
On 19 February 2015, ICON responded to Dr Mainwaring’s letter dated 12 February 2015. It said:
The panel was not satisfied with your explanation that only one patient received treatment as a consequence of the results of “our technology”. The audit identified numerous patients who recruited into the study with the intention of using targeted therapies to treat their cancers. In addition, two Icon VMOs referred patients to you specifically to access the QAP study.
Further correspondence passed between ICON and Dr Mainwaring in late February and March 2015. It is not necessary to summarise the details of that correspondence.
On 1 April 2015, ICON advised Dr Mainwaring that considering concerns with respect to conduct of clinical trials at ICON Cancer Care, he had been granted temporary accreditation as a visiting medical officer at ICON Cancer Care.
On 9 April 2015, ICON sent further correspondence to Dr Mainwaring about his temporary accreditation. ICON advised Dr Mainwaring that the Review Panel had met on 8 April 2015, but Dr Mainwaring was not advised of the Panel’s findings.
Dr Mainwaring did not receive a copy of the ICON complaint dated 9 April 2015 at this time. It was provided to him by ICON’s solicitors on 16 May 2017.
In the ICON complaint to UQ, it identified its concerns as follows:
In essence, we have a number of major concerns regarding the conduct of this trial:
1.The quality of informed consent at entry to the trial and of the subsequent clinical and trial record keeping.
2.The relationship between the stated aims of the first trial, its conduct and the reporting of its results prior to proceeding with a second trial.
3.The use of trial results to inform clinical decision making without validation either of the technology or of its applicability to clinical use.
4.The portrayal of relationships between the Principal Investigators, ICON, The University of Queensland, Xing and other organizations has been inadequate at best.
5.The scope of initial ethics approvals limiting the study to 50 patients with subsequent expansion beyond 600 patients without prospective explanation or approval. Subsequent reporting of serious protocol breaches including adverse events has been poor (with one patient death as a result of therapy not authorised by the trial but reliant on its unvalidated results).
ICON said that based on the initial concerns, it made the referral to UQ “for consideration of this material and possible further investigation of the questions”.
ICON then identified two further concerns as follows:
Subsequently the Panel met with Dr Mainwaring to address a number of questions. Of first concern was the fact that this research had been conducted without permission in the usual way from the Icon Research Foundation Research Committee which was a direct breach of Icon Cancer Care Bylaws. Equally, issues with the conduct of the trial, record keeping, informed consent and conflict of interest were all discussed. Subsequent to this it is apparent that, despite the fact that approval still has not been given by the Icon Research Foundation, Dr Mainwaring has actively been involved in the recruitment of patients for the second study. It has also been clear from other communications that Dr Mainwaring’s reassurance of the lack of any company or other entity that stood to gain from this trial is almost certainly incorrect. It is on the basis of these two further concerns that our Panel again met on 08 April 2015.
ICON then said that it confirmed the following resolutions:
Consequent to that meeting also attended by Mrs Teena Pisarev who has recently been appointed as the CEO of ICON in addition to the previously mentioned members, we confirmed a number of resolutions. They are:
1.That the Chairman of ICON, Mr Marcus Darville, be advised by the Subcommittee that a formal referral regarding these concerns be made by ICON Cancer Care to the University of Queensland as an associated organisation in this matter. As we have discussed, once you have considered your positon, we would meet to consider a joint approach to the further clarification of the issues raised.
2.That Dr Mainwaring be notified that he is no longer able to pursue new clinical studies as a principle investigator with the Icon Research Foundation and therefore within Icon Cancer Care Centres. This is effective immediately. He will also be asked to step down from his position on the Research Committee of Icon Research Foundation. The Panel has advised that clinical trials which are supervised by Pharma should be allowed to continue on the condition that Dr Mainwaring’s Accreditation with Icon is current.
3.Bellberry Ethic Committee will be notified of these events and we will seek immediate suspension of the two approved studies from Bellberry.
4.Dr Mainwaring will be notified of these decisions. It will be indicated that his ongoing Accreditation as a visiting medical officer to Icon Cancer Care will continue on a month to month basis and will be dependent on his continued adherence to the Research Policies and Bylaws of ICON and on the results of further investigations.
The conclusion in the ICON complaint is as follows:
In summary, we believe there are substantive issues of concern around the conduct of the two clinical trials. We seek the involvement of The University of Queensland research Integrity Unit in assessing those concerns. We look forward to receiving your advice and to working with you to clarify the issues we have raised.
On 17 April 2015, UQ wrote to Professor Trau referring to the complaint received from ICON. UQ advised that QA1 and QA2 were highly likely to be the subject of a Preliminary Investigation “according to the UQ Research Misconduct Policy”. UQ directed the immediate suspension of QA1 and QA2 conducted at UQ under the auspices of the UQ Human Research Ethics Committee Approvals previously identified in the letter.
On 20 April 2015, Professor Trau wrote to UQ and provided various explanations and asked for a copy of the ICON complaint. He did not receive a copy of the ICON complaint.
On 27 May 2015, UQ advised Professor Trau that it had received a complaint from ICON and that it was going to conduct a Preliminary Investigation into the complaint. UQ said:
The concerns include, but are not limited to:
i.Whether these studies have been approved by the Icon Research Foundation as represented to the UQ HREC.
ii.Whether the research activity has complied with the approved protocols.
iii.Whether, as a consequence, analysis of collected tissue samples being undertaken at UQ may be compromised.
iv.Whether a conflict of interest existed or exists, and if so, whether it was properly managed in accordance with UQ policy and procedure.
v.Whether Study 1 and Study 2 are related to research presented at the American Society of Clinical Oncology meeting in June 2014.
vi.Other matters which may arise in the conduct of this investigation.
In July 2015, correspondence passed between Professor Trau and Ms Teena Pisarev of ICON about the complaint. It is not necessary to set out the details.
During the Preliminary Investigation conducted by UQ, Professor Trau made a number of requests for a copy of the ICON complaint. He was not given a copy.
On 17 September 2015, Professor Trau received a notice from UQ that a recommendation had been made by the Designated Person for Research Misconduct that, until further notice, “receipt of any new human samples into your laboratory at AIBN, including 1450 samples proposed to be received from international tissue banks, not be allowed to proceed”. This is the Human Tissue Ban. The notice referred to the ongoing Preliminary Investigation “in relation to your possible Research Misconduct”.
On 18 September 2015, UQ advised Professor Trau that the Preliminary Investigation had recently concluded and that the Designated Person (Professor Anton Middelberg) had formed an opinion that a prima facie case of research misconduct existed. Professor Trau was advised that a Research Misconduct Inquiry would be held.
In an email to Professor Trau on 29 September 2015, Professor Middelberg said that the Human Tissue Ban followed findings and recommendations arising from the Preliminary Investigation.
On 14 October 2015, Professor Trau was given formal notice and details of a Research Misconduct Inquiry by UQ. The scope of the Inquiry was identified as follows:
A.The research activities of Adjunct Professor Paul Mainwaring and Professor Matt Trau (“Researchers”). The scope of research activities includes the source of funding of the research, the collection (including obtaining of participant consents), accession, receipt of human tissue samples, storage, use and analysis of human tissue and derivatives thereof and associated data and subsequent publication and representation of research results.
B.Whether the human tissue samples and derivatives thereof received at UQ were used for purposes beyond that covered under approved ethics approval.
C.An examination of whether the ethics approvals including the Bellberry approval 2012-09-1051-A-3 and UQHREC approval 2014000112 and relevant site approvals (Mater, Wesley and St Andrews Research Institute Tissue Bank) existed and were appropriate and reflected the research activities conducted by the Researchers.
D.Whether the results of the research activity arising from Bellberry approval 2012-09-1051-A-3 and UQHREC approval 2014000112 have been used to guide clinical treatment in study participants and if so, whether this was in compliance with the ethical approvals, the Code, relevant NHMRC guidelines and requirements for participant confidentiality.
E.Whether a conflict of interest existed in the research activities of the Researchers (including in relation to any donation or receipt of funding, and the commercial interests of the Researchers in Xing Technologies Pty Ltd) and if so, whether this was appropriately disclosed and managed.
On 9 November 2015, UQ sent to Professor Trau a summary of the initial complaint by ICON, a summary of adverse material and an index and copies of relevant documents and materials. The summary of adverse material was extensive and was organised around the five terms of reference. The Court was referred to the following passages in the course of submissions:
Terms of Reference A
1
Dr Mainwaring did not receive approval from Icon Cancer Care (Icon) for the two studies as required by Icon’s by-laws for the conduct of research
Dr Mainwaring did not comply with Icon’s by-laws for the conduct of research at Icon facilities. Once the Icon by-laws came into existence and Dr Mainwaring was bound to these by-laws (after signing them on 10 October 2013), it is clear that Icon approval to undertake the research studies was required. However, Dr Mainwaring did not receive this approval. The expedited approvals obtained from the University of Queensland (UQ) for Study 1 on 5 February 2014 and Study 2 on 24 February 2015 and the Bellberry application for Study 2 (which was approved on 6 February 2015) were all submitted after Dr Mainwaring was bound by the Icon by-laws.
As a clinician associated with Icon, a member of the Icon Research Committee and a signatory to the Icon by-laws it would have been reasonable to expect Dr Mainwaring to have ensured that appropriate consultation with, and approval from, the Icon Research Committee had occurred prior to Study 1 and Study 2 being presented to UQHREC. It is unlikely that Dr Mainwaring was unaware that he was required to seek formal approval from the Icon Research Foundation/Icon Research Committee before engaging in research projects using Icon facilities.
2
Dr Mainwaring and Professor Trau misrepresented to the University of Queensland Human Research Ethics Committee (UQHREC) that they had approval from Icon for the two studies
... The trial protocol numbers IN.QA00100/12 (Study 1) and IN.QA00101/14 (Study 2) were represented as HOCA/Icon approved on the UQ ethics application but no evidence of this approval can be found. The portrayal of Icon support may have misled UQHREC to believe that the studies had the formal support of Icon.
…
Dr Mainwaring stated that the presentation of the HOCA approval numbers in both ethics applications was an administrative error. It seems unlikely that the inclusion of the two approval numbers was an administrative error.
…
Terms of Reference C
…
3
There is no evidence of ethical or site specific approvals at any hospitals from which participant samples may have been collected nor any agreements such as Material Transfer Agreements enabling the transfer of human samples between UQ and any other party
…
(e)
…
The Study 2 Bellberry ethics application states ‘…study will be conducted at Icon Cancer Care South Brisbane & Icon Cancer Care Chermside, Canossa Private Hospital, Oxley and Mater Private Hospitals Brisbane and Gladstone in 2015’.
Terms of Reference D
1
The results of Study 1 were used to guide treatment in at least two patients
The statement “the study will guide diagnosis and treatment of cancer” was included in submission to UQHREC for Study 1 and Study 2. This statement was additional to the Bellberry application and may represent an undeclared ‘new use’. It has been suggested that the results of Study 1 were used in respect of at least two participants to guide treatment despite disclaimers in the Patient Information Consent Forms that the results would not be appropriate to guide treatment.
One of the two participants, known in the study as Patient 205, had AML and was dying or the disease was progressing and the patient was put into the trial, to look for something different. A genetic change was uncovered and Dr Mainwaring recommended treatment with MekInist. Patient 205 received the drug and did not have to pay for it. The patient responded briefly and then died of a complication which may have arisen from the prescribed drug.
It is acknowledged that the treatment of Patient 205 using the experimental therapy may have occurred when the patient was in a terminal phase of their illness, had exhausted other options for care and the patient and family may have been fully informed about the experimental nature of the treatment. However, the issue is whether this was a correct approach in the context of the approved terms of the study.
Dr Mainwaring at times stated that the study was only QA when it was being used to guide clinical treatment.
A copy of a Patient Information Form for ‘Testing for Hereditary Genes in 2014’ has been identified which may be associated with Study 1. Dr Mainwaring’s admitted this was a ‘trial’ consent form which had not received HREC approval. It is not known to how many participants this option was offered or whether participants actually consented to sample collections.
Terms of Reference E
…
4
The studies relate to patents licensed to Xing.
Professor Trau has stated that the patents licensed to Xing are “..nothing to do with the QA ethics application (programs)..” and he cited three patents.
However, prima facie the three patents listed all relate to platform technologies that might be considered relevant to ‘omics’ technologies for cancer detection.
Members of the Trau group were working on ‘nanoshearing project’ and the Study 1 approval letter was used.
…
These passages provide an insight into the range of matters which were considered as part of the Preliminary Investigation.
In March 2017, the Research Misconduct Inquiry delivered its final report. According to Dr Mainwaring, he and Professor Trau were completely exonerated in the report. With respect to patient AR205, the Inquiry’s finding was as follows:
One case was patient 205, a patient with leukaemia who had exhausted her treatment options. Her treating clinician, Dr James Morton, an associate investigator on the study, chose to treat the patient with a targeted therapy based on the results from [QA1], which he received in line with the undertaking of the patient information sheet which guaranteed the return of the results of the tests on the tumour samples (citations omitted). This was a clinical decision between doctor and patient, outside of the trial. It was correct procedure for the Chief Investigators to provide the data to the clinician in these circumstances.
The Inquiry’s final report was not put before the Court. Counsel for Xing told me from the bar table that his client was not at liberty to disclose the report without UQ’s permission. That statement should have been the subject of evidence, but I am nevertheless prepared to proceed on the basis that it is correct. The response of counsel for ICON was that it does not deal with the question of whether Xing should have sought UQ’s permission to disclose the report. ICON has not been given a copy of the final findings of the Research Misconduct Inquiry.
The importance of a prospective applicant adducing all the information in his or her possession has been emphasised in previous decisions of this Court (Glencore International AG v Selwyn Mines Limited [2005] FCA 801; (2005) 223 ALR 238; Ebos Group Pty Ltd v Team Medical Supplies Pty Ltd [2011] FCA 862). I am disposed to think that the non-production of the final report is not a breach of that obligation, having regard to Xing’s explanation, albeit from the bar table. I do not need to decide the point finally because I have concluded that the application should be dismissed on other grounds.
Xing’s case as to ICON’s interference with its contractual relations with UQ/Uniquest is as follows. As I have said, Xing has an exclusive sub-licence for the three patented technologies and Xing has contracted with Uniquest for an exclusive worldwide sub-licence to commercialise the three patented technologies and to undertake a research program at UQ to validate the three patented technologies which must use the services of Professor Trau.
On 24 February 2015, Professor Trau and Dr Mainwaring gave a presentation to ICON about Xing and the patents Xing had licensed from UQ. The presentation was made to Mr Marcus Darville, Chairman of ICON at the time, and Mr Stuart Giles, Deputy Chairman of ICON at the time. During the presentation, they advised Mr Darville and Mr Giles, “of the significant commercial potential of Xing’s licensed patents”.
On 31 July 2015, Professor Trau met with Mr Darrell Crawford and Dr Susan O’Brien, Research Integrity Manager, UQ, in relation to the ICON complaint and the Preliminary Investigation. Professor Trau was advised that UQ had requested Uniquest to suspend further progression of any subcontracts between Xing and Uniquest as a result of the ICON complaint and the Preliminary Investigation. By email of the same date, Dr O’Brien confirmed this advice.
On 6 August 2015, Dr O’Brien wrote to Professor Trau in the following terms:
The University understands the scope of the research that forms the basis of the contractual relationship between Xing Technologies Pty Ltd and UniQuest relates to the following studies conducted at your laboratory:
ŸQuality Assurance Program of New Technologies in Cancer Diagnostics (UQHREC 2014000112) (Study 1); and
ŸQuality Assurance Program of Novel Nanotechnologies in Cancer Diagnostics and Care (UQHREC 2015000254) (Study 2).
The University formed the view that further research projects that maybe undertaken through UniQuest in connection with the two studies should be suspended until the completion of the Preliminary Investigation on the basis that the ethics approvals for the two studies have been suspended by Bellberry and UQ HREC (the ethics approvals for these studies have now have been withdrawn by Bellberry for Study 2 and Study 1 has been closed).
Without appropriate ethics approvals in place for these studies or work related to these studies the University was concerned that any further research conducted for UniQuest may be done without ethics approval and therefore be in breach of the Code of Responsible Conduct of Research.
If you have a different view of the University’s assessment of this matter please provide us with further details or information.
On 13 August 2015, the suspension was lifted. Dr O’Brien wrote to Professor Trau in the following terms:
Thank you for the additional information provided to us regarding the Xing Technologies subcontract.
There is currently no impediment to negotiations between Xing Technologies and Uniquest though due diligence on ethics approvals will now be required.
On or about 23 September 2015, the suspension was re-imposed.
On 28 September 2015, Professor Trau wrote to UQ appealing against the Human Tissue Ban. He identified the “damaging effects” of the decision as follows:
Since the correspondence on this matter last week, I have only just started to look into what damaging effects this decision will have on commercial contracts that my laboratory has secured. For example, in-line with the University’s objectives to patent and commercialise intellectual property developed at UQ, I worked with Uniquest to help create Xing Technologies Pty Ltd, a spin-out company from the University. Last year, this company completed a series A financing round following the successful licence of 3 patents from the University of Queensland in exchange for M$1.5 of contract research to further develop these diagnostic technologies within my laboratory at UQ. Because the goal of this contract research is to further develop these (point-of-care) diagnostic technologies within my lab, the work involves experiments on model biological systems, cell lines and patient samples. Because the explicit goal is to develop diagnostic technologies, the requirement to exemplify the performance of these three technologies in real samples is critical. Hence the imposed ban will block all capacity to perform this critical aspect of the work.
The damaging effects on this decision in this case include:
(i)Inability to demonstrate 3 nascent UQ technologies (licenced to Xing) on clinical samples. This is a highly competitive field internationally and time-to-market is a critical part of any commercialisation process.
(ii)Inability to fully realise the commercial value of these three technologies (the investors of Xing have already paid the full costs of patenting these 3 technologies under the understanding that every effort will be made to commercialise them)
(iii)Inability to fully execute on the contract research that Xing has already funded at UQ.
(iv)Major damage to the value of Xing if proof-of-concept milestones on these three technologies are not achieved. As is consistent with the UQ commercialisation model, Uniquest, and thus UQ, has a significant equity and royalty share in Xing.
(v) Major damage to the valuation of Xing
(vi)Major damage to Xing in terms of impeding its ability to secure sub-licences and series B funding in order to perform the next critical phase of its commercialisation process. Xing currently relies on its research sub-contract to Uniquest/UQ to perform all of its research.
(vii)Major reputational damage to Xing.
Finally, Xing’s case as to the damage caused by the Human Tissue Ban and the Xing Contract Ban is as follows:
(a)Xing has been prevented from undertaking contracted research to commercialise the three patented technologies on human samples;
(b)Xing has been prevented from meeting conditions precedents in licencing and research contracts with Uniquest;
(c)Xing has been unable to develop the three patented technologies as it was stopped from employing staff at the University via contract research to enable validation of the three patented technologies;
(d)Xing has been unable to undertake further capital raising required to fund research and commercial development of the three patented technologies;
(e)Xing entered into a Memorandum of Understanding (MOU) with a Singaporean based private equity company (Investor) on 27 August 2015 for the purpose of establishing a joint venture to commercialise Patent 3. This developed into a MOU with the company on 10 December 2015 for all three patented technologies that offered a capitalisation of a joint venture entity of which Xing’s shareholding was valued in the MOU at $USD20,000,000.00. The MOU did not proceed for reasons including that the Investor was solely interested in human diagnostics and exemplification of the technology by way of testing on human samples which was prevented by the Sample Ban.
(f)the value of the intellectual property licenced to Xing has been impaired, as has Xing’s value, as Xing has not been able to progress research to validate the three patented technologies to enable them to be brought to market.
XING’S CLAIM FOR MISLEADING AND DECEPTIVE CONDUCT
As I have said, Xing submits that ICON made a false statement in the ICON complaint and that this constituted misleading and deceptive conduct contrary to s 18 of the ACL. The false statement is of the death of one patient “as a result of therapy not authorised by the trial but reliant on its invalidated results”. This statement is certainly open to the interpretation that therapy was administered to a patient which was not authorised by the trial. The selection of the therapy was based on results which had not been validated by the trial. As a result of the therapy, the patient died.
Xing adduced evidence that this statement was false. The evidence came from Dr Mainwaring and is to the following effect:
(1)The patient, Patient AR205, was enrolled in QA1 in or about January 2014;
(2)Patient AR205 had leukaemia and the patient’s treating oncologist was Dr James Morton who commenced caring for AR205 on 8 October 2010;
(3)At the time of the investigation by the ICON Review Panel and the ICON complaint, Dr Morton was a member of the ICON Board;
(4)In June 2014, Dr Morton approached Dr Mainwaring and told him that AR205 had asked Dr Morton to obtain her data relevant to QA1. AR205’s white blood cell count was increasing so rapidly that it was considered she had “days to weeks” to live;
(5)Dr Mainwaring considered that he was obliged to provide patient medical information on request and he provided the data concerning AR205 to Dr Morton;
(6)The data was used to identify a targeted therapy which the patient chose to undergo;
(7)The targeted therapy was initially successful in reducing AR205’s white blood cell count. However, the patient subsequently died; and
(8)There was no criticism of Dr Mainwaring in the final report of the Research Misconduct Inquiry concerning Patient AR205 (see [44] above).
As I have said, Xing’s case is that the documents it seeks from ICON are relevant to ICON’s intention in making the complaint and, in particular, the statement about the death of a patient in the ICON complaint. Although intention is not a necessary element of a contravention of s 18 of the ACL (Hornsby Building Information Centre Proprietary Limited v Sydney Building Information Centre Limited (1978) 140 CLR 216), Xing’s submission is that proof of an intention to mislead and deceive is a matter which could support a conclusion that the person to whom the statement or conduct was directed was, in fact, misled and deceived (Cadbury Schweppes Pty Ltd and Others v Pub Squash Co Ltd [1981] RPC 429 at 493-494; Campomar Sociedad, Limitada and Another v Nike International Limited and Another (2000) 202 CLR 45 at [33] (“Campomar”)).
Xing submits that although it may have the evidence to establish that the statement was false, that is not fatal to its application. The fact that Xing has sufficient information to plead this element of its cause of action is not decisive. Xing may need information to decide whether the cost and risk of litigation is worthwhile. Xing relied on what the Full Court said in Optiver Australia Pty Ltd v Tibra Trading Pty Ltd and Others (2008) 169 FCR 435 (Optiver) at [36]:
The concept of a “bare pleadable case” is not only a gloss on the text of the rule but is fundamentally inconsistent with its purpose. The policy behind the rule is that even where there is a reasonable cause to believe that a person may have a right to relief, nevertheless that person may need information to know whether the cost and risk of litigation is worthwhile. As Hely J pointed out in St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at [26], the question does not concern the right to relief but rather “whether to commence proceedings”. Inspection of documents in the possession of the proposed defendant may enable a properly informed decision to be made whether to commence a proceeding to obtain the relief. The “bare pleadable case” approach diverts attention from the true purpose of the rule. A person may have a pleadable case, but still not sufficient information upon which to decide whether to embark upon litigation. …
Xing put an alternative argument in writing, but abandoned it during oral submissions. It claimed that intention was relevant to a potential cause of action for accessorial liability against the individual authors of the ICON complaint. It abandoned this argument during oral submissions, having regard to the fact that the identified individuals were not prospective respondents to the application.
ICON put a number of arguments in response to Xing’s submissions.
First, ICON submitted that Xing had what it needed to determine whether the statement was false and, as a result, whether the making of the statement constituted misleading and deceptive conduct. Intention is not a necessary element of the cause of action. ICON submitted that Xing’s reference to Campomar did not really advance the matter because the relevant principle stated by the High Court related to a claim in passing-off and not a claim for misleading and deceptive conduct. As I understood the submission, it was that as to that element of the cause of action which raised the issue of whether the statement was false and, therefore, misleading or deceptive, Xing had sufficient information to decide whether to start a proceeding and information going to intention does not add, or add materially, to anything necessary for the purposes of making the decision.
Secondly, ICON submitted that Xing has not established reasonable grounds to believe that it may obtain relief for misleading and deceptive conduct because it is clear that it will not be able to prove causation. Causation in this context means that there was a sufficient causal link between the allegedly false statement and the acts alleged to have caused the loss and damage, namely, the Xing Contract Ban and the Human Tissue Ban. A sufficient link is the type of link identified in cases such as Henville and Another v Walker and Another (2001) 206 CLR 459 and I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited (2002) 210 CLR 109. In many respects, this is the burden of ICON’s opposition to the application. Causation is not established (to the extent required) having regard to the following:
(1)The Bans were imposed by UQ and not ICON;
(2)The Bans were imposed as a result of information and findings by UQ during the Preliminary Investigation. The Human Tissue Ban arose as a direct result of the Investigation and there is an express statement to that effect. The same may be inferred in the case of the Xing Contract Ban;
(3)It may be inferred that the summary of adverse material represents the reasons for the Bans. That adverse material indicates that there were likely a number of grounds for the Bans unrelated to the statement about the death of a patient. Furthermore, the statement about the death of a patient was not even the focus of the particular “concern”. The focus was whether the conduct was outside the scope of the study, not the death of a patient.
Thirdly, ICON submitted that there is no evidence that Xing has suffered loss or damage as a result of the Human Tissue Ban apart from the bare assertion of the same. Furthermore, there is no evidence of loss or damage in terms of the Xing Contract Ban. In fact, the evidence suggests that Xing was operating under the same approval as QA1 and QA2 (see [43] Term of Reference E).
In Campomar in the context of a passing-off claim, the High Court said (at [33]):
However, it is well established by the authorities referred to by the Privy Council in Cadbury-Schweppes Pty Ltd v The Pub Squash Co Ltd that, where there is such a finding of intention to deceive, the court may more readily infer that the intention has been or in all probability will be effective.
(Citation omitted.)
A similar principle applies in the case of a misleading and deceptive conduct claim where, for example, an allegedly false statement is made to the public or a section of the public and the question is whether the public is, or may be, misled or deceived (S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 88 FCR 354 at 361-363). In other words, an intention to mislead or deceive by the maker of the statement may be an item of evidence establishing that the public was or may have been misled or deceived. This is a different case from a case where an allegedly false statement is made by another party to commercial negotiations (Campomar at [101]).
None of this is to say that an intention to mislead or deceive may not be relevant where an allegedly false statement is made to another party and not the public or a section of the public. In a related field of fraudulent misrepresentation, an intention to induce may support a finding of inducement (Gould and Another v Vaggelas and Others (1985) 157 CLR 215 at 238 per Wilson J (with whom Gibbs CJ agreed at 219)).
In this case, the misleading and deceptive conduct is said to be the false statement about the death of a patient. The issue to which the documents sought is directed is ICON’s intention. ICON’s intention is not an essential element of a claim that a statement is misleading and deceptive or a claim that by reason of the statement, UQ was induced to act in a particular way. It might conceivably be an item of evidence that supports a conclusion that the statement was misleading and deceptive or that there was inducement, but I do not think that that is a realistic possibility in the circumstances of this case. The statement seems to be quite clear and whether it was misleading and deceptive will turn on the terms of the statement and evidence of the same nature as that already given by Dr Mainwaring and summarised above (at [56]). A similar conclusion applies in the case of the issue of inducement which I think will turn on the nature of the statement, the context in which it was made, including the other “concerns” expressed in the ICON complaint and UQ’s subsequent conduct. It is important to bear in mind the issues to which the documents sought are said to be directed as I have identified them. The position might be different if fraud or animus was said to be an essential element of the cause of action or the type of damages claimed (e.g., aggravated or exemplary), but that was not Xing’s argument. To put the matter in terms of the rule, as to the element identified (and there are other elements as ICON’s submissions as to causation make clear), Xing presently has sufficient information to decide whether to start a proceeding or alternatively, the documents sought will not bear on that decision.
For these reasons, Xing does not satisfy r 7.23(1)(b).
It is not strictly necessary for me to address ICON’s second and third submissions. However, I think that it is appropriate that I do so. I do so bearing in mind that r 7.23(1)(a) refers to a reasonable belief that the prospective applicant may have the right to obtain relief and that the Full Court in Optiver (dealing with the previous rule, although in similar terms) (at 477) said that it is not necessary in order to engage the rule to establish that a prima facie case in fact exists. It is not necessary to establish every element of a cause of action, although it is necessary to examine each element to determine whether there is reasonable cause to believe that each of the necessary elements exist. As the Full Court said in Apache Northwest Pty Ltd v Newcrest Mining Ltd (2009) 182 FCR 124 (Apache Northwest v Newcrest Mining) (at [4]) per Moore and Gilmour JJ, there must be some evidence of loss.
As to the causation argument, there seems to be considerable force in ICON’s submissions, but I am not satisfied that they are so strong as to lead to the conclusion that the requirements of r 7.23(1)(a) are not met.
As to the loss and damage argument, the evidence adduced by Xing is very general, but again I am not satisfied that the case is not so weak as to lead to the conclusion that the requirements of r 7.23(1)(a) are not met.
ICON adduced evidence that there would be a good deal of time and inconvenience involved in locating the documents identified in the proposed orders. That evidence came from a solicitor for ICON (Ms Kathryn Finlayson) and was the subject of a response from Dr Mainwaring. It is difficult to make a clear finding in light of the conflict on the evidence. I do not propose to resolve, or attempt to resolve, the conflict in view of the fact that I have decided the application should be dismissed on other grounds. I would say that had there been good reason to make the orders sought, I would not have been deterred from doing so by ICON’s evidence of the time and inconvenience involved in locating the documents.
XING’S CLAIM IN RELATION TO THE TORT OF PROCURING OR INDUCING A BREACH OF CONTRACT
Xing submits that ICON procured or induced a breach by UQ/Uniquest of its contract with Xing. As with Xing’s misleading or deceptive conduct claim, the documents which Xing seeks are said to be relevant to ICON’s intention in making the ICON complaint.
Intention is a necessary element of such a cause of action and is the gravamen of the tort. The significance of knowledge to the question of intention was identified by Lindgren J (with whom Lockhart and Tamberlin JJ agreed) in Allstate Life Insurance Company and Others v Australia and New Zealand Banking Group Ltd and Others (1995) 58 FCR 26 at 43:
… Although the requirement of knowledge of the contract is sometimes discussed as if it was a separate ingredient of the tort, it is in fact an aspect of intention. The requirement that the alleged tortfeasor have “sufficient knowledge of the contract”' is a requirement he have sufficient knowledge to ground an intention to interfere with contractual rights.
Both this intention to interfere with contractual rights and the necessary supporting knowledge of the contract refer to the “actual” or “subjective” state of mind of the alleged tortfeasor. I take the words “well knew” in proposed pars 159F(l) and 155C(1) to refer to a conscious awareness of the prohibition in the Indenture without any relevant misunderstanding of its effect. I do so because, to my mind, that is what the expression, without words of qualification, naturally signifies.
Although an alleged tortfeasor must have “a fairly good idea”' that the contract benefits another in the relevant respect, knowledge of the contract may be sufficient for the purpose of grounding the necessary intention to interfere with contractual rights although the precise term breached is not known: D C Thomson & Co Ltd v Deakin at 687; Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691; [1966] 1 All ER 1013 at 700-701; 1016-1017 (Lord Denning MR), 704; 1019-1020 (Diplock LJ); Daily Mirror Newspapers Ltd v Gardner [1968] 2 QB 762 at 780-781 (Lord Denning MR), 784 (Davies LJ); Woolley v Dunford (1972) 3 SASR 243 at 282; Carlton & United Breweries Ltd v Tooth & Co Ltd (1986) 7 IPR 581 at 625‑626.
…
(see also LED Technologies Pty Ltd v Roadvision Pty Ltd and Another (2012) 199 FCR 204 at [40]-[54].)
In Daebo Shipping Company Ltd v The Ship Go Star (2012) 207 FCR 220, the Full Court of this Court said (at [88]-[89]):
88 The tort of inducing a breach of contract consists of the following elements:
(1)there must be a contract between the plaintiff (or applicant) and a third party;
(2) the defendant (or respondent) must know that such a contract exists;
(3)the defendant must know that if the third party does, or fails to do, a particular act, that conduct of the third party would be a breach of the contract;
(4)the defendant must intend to induce or procure the third party to breach the contract by doing or failing to do that particular act;
(5) the breach must cause loss or damage to the plaintiff.
89The gravamen of the tort is the defendant’s intention to induce or procure the breach in the knowledge that such a breach will interfere with the plaintiff’s contractual rights: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 at 43A-C per Lindgren J with whom Lockhart and Tamberlin JJ agreed; Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at 509-512 [159]-[171] per Sheller, Stein and Giles JJA; LED Technologies Pty Ltd v Roadvision Pty Ltd (2012) 199 FCR 204 at 212-216 [40]-[54] per Besanko J with whom Mansfield and Flick JJ agreed. As Lindgren J explained, the defendant must have “a fairly good idea” that the contract benefits another person in the relevant respect. He said that knowledge of the contract may be sufficient for the purpose of grounding the necessary intention to interfere with contractual rights, even though the defendant does not know the precise term that will be breached. Reckless indifference or wilful blindness can amount to knowledge for this purpose: Allstate 58 FCR at 43C-44F; Fightvision 47 NSWLR at 512 [171]; LED 199 FCR at 216 [54].
ICON submits that Xing does not have reasonable grounds to believe that it has the right to obtain relief in relation to this cause of action for the following reasons:
(1)Xing has not identified the term of the contract between it and UQ/Uniquest which has been breached;
(2)Xing has not identified or established a breach of any contract by UQ/Uniquest with Xing. In other words, it has not identified any conduct by UQ/Uniquest which could be characterised as a breach of contract; and
(3)Xing has not identified any conduct by UQ/Uniquest which can be reasonably characterised as conduct which amounts to procuring or inducing a breach of contract. For the tort to be made out, there must be an element of “pressure, persuasion or procuration”. The provision of mere information or advice is not sufficient (Lumley v Gye (1853) 2 El & Bl 216; (1853) 118 ER 749; D C Thomson & Co Ltd v Deakin [1952] Ch 646).
There is a good deal of force in the third submission, but I think it is sufficient to uphold ICON’s submission by reference to the second contention. Xing has not identified, by reference to evidence or legal articulation, a breach of contract by UQ/Uniquest which has caused loss and damage to Xing. In other words, there is no persuasive evidence before the Court to the effect that the Xing Contract Ban or the Human Tissue Ban were a breach of contract by UQ/Uniquest.
For these reasons, Xing does not satisfy r 7.23(1)(a).
In view of this conclusion, it is not necessary to consider whether an order could be made under r 7.23(1) where the requirements of the rule are met only in relation to a non-federal claim (Apache Northwest v Newcrest Mining at [76] per Flick J).
CONCLUSION
In my opinion, the application should be dismissed. There appears to be no reason why costs should not follow the event, but I will give the parties the opportunity to address that issue.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 12 December 2017
18
2