Ballance Agri-Nutrients v Ravensdown Fertiliser Co-operative Limited HC Auckland CIV 2009-404-2171

[2010] NZHC 911

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-002171

UNDER  The Patents Act 1953

IN THE MATTER OF     An appeal from the decision of Assistant

Commissioner Popplewell dated 23 March
2009 directing that Patent application
520549 be sealed

BETWEEN  BALLANCE AGRI-NUTRIENTS LIMITED

Appellant

ANDRAVENSDOWN FERTILISER CO- OPERATIVE LIMITED AND LINCOLN UNIVERSITY

Respondents

Hearing:         3 June 2010

Appearances: B Brown QC and K W McLeod for the Appellant

J G Miles QC and J A Hazel for the Respondents

Judgment:      3 June 2010

ORAL JUDGMENT OF PRIESTLEY J (Adjournment application)

Counsel/Solicitors:

B Brown QC, P O Box 5161, Lambton Quay, Wellington 6015. Fax: [phone]

Email: [email protected]

K W McLeod, A J Park Law, P O Box 949, Wellington 6140 .  Fax: [phone]
Email: [email protected]
J G Miles QC, P O Box 4338, Shortland Street, Auckland 1140. Fax: [phone]
Email: [email protected]
J A Hazel, Baldwins Law Limited, P O Box 5999, Wellesley Street, Auckland 1141

Fax: [phone] [email protected].

BALLANCE AGRI-NUTRIENTS LTD V RAVENSDOWN FERTILISER CO-OPERATIVE LTD AND LINCOLN UNIVERSITY HC AK CIV-2009-404-002171  3 June 2010

[1]      This is an adjournment application by the respondent.  I intend to give only brief reasons.

[2]     The substantive matter is an appeal from a decision of an Assistant Commissioner in respect of a patent.  The patent in question deals with a nitrification inhibiter.

[3]      It is unnecessary and probably unhelpful for me to traverse the substantive background.   Both parties have the benefit of being represented by extremely experienced senior counsel.

[4]      The pathway to the appeal was fixed by minutes of Venning J and Harrison J on 5 May 2009 and 11 February 2010 respectively.  The appeal is scheduled for a two day hearing next week, beginning Wednesday 9 June.  Effectively between now and then there are only two working days.

[5]      Harrison J made various orders relating to additional affirmations to be filed by the appellant.  Answers to those affirmations were to be filed by the respondent. Those  answers  by the  respondent  appear  in  affirmations  of Professor  Cameron, Professor Di, and Dr John Russell.

[6]      The reason for this new series of affirmations seems to lie in the discovery, after the hearing before the Assistant Commissioner, of various methods of application and or use to which the nitrification inhibiter could be put.   Issues of amendment, obviousness, and prior publication might arguably have been brought into play.  In any event the factual landscape had changed somewhat.

[7]      Harrison J gave qualified leave to the appellant to file further affirmations “strictly in reply” not to exceed two or three pages in length with any final admissibility decisions  to  be  left  to  the  presiding  Judge.    That  permission  has resulted in the appellant filing an affirmation from an expert Dr D C Edmeades.  His affirmation to some extent has set a metaphorical cat amongst the pigeons.

[8]      Mr  Miles  QC,  on  instructions,  first  has  concerns  over  Dr  Edmeades impartiality as an expert witness, - a rare matter to raise.  Secondly the respondent submits that there are matters contained in Dr Edmeades’s affirmation which are not strictly in reply but which raise new and potent matters.  In essence the respondent considers that it has been caught somewhat unawares by Dr Edmeades’s affirmation; that  there  is  a  degree  of “ambush”;  and  that  Dr  Edmeades’s  evidence assumes considerable centrality to the appellant’s case.

[9]      Mr Brown QC opposes.   He points out that it was only recently that the appellants were able to retain Dr Edmeades; that his affirmation is strictly in reply; and that admissibility issues could well be dealt with, as envisaged by Harrison J, by the presiding Judge.

[10]     Mr  Brown’s  major  fear,  which  I  record  and  with  which  I  have  some sympathy,  is  that  if  an  adjournment  is  granted  for  the  purpose  of enabling the respondent to grapple with the substantive matters as contained in Dr Edmeades’s affirmation this will result in a flood of new evidence which will lead to the undesirable situation of further detailed affirmations on technical topics being placed before the Court.

[11]     Mr Brown’s approach is that if there are matters that are not strictly reply contained in the Edmeades’s affirmation these should be identified.   The only concession which Mr Brown makes in that regard is that perhaps Dr Edmeades’s conclusions are matters which go to the ultimate issue, thus lying outside his brief, although it is not unknown for expert witnesses to give opinion evidence on ultimate issues.

[12]     Solely to give to both counsel the opportunity of placing their concerns in a context I did indicate to them that resources in this Court next week are tight, but if it would assist, a three day fixture beginning Monday 23 August 2010 might be available.   My major concern on timetabling is to avoid, in the public interest (a factor  in  patent  cases),  the  case  having  to  be  adjourned  part-heard  because unexpected time was taken up with challenges to whether or not Dr Edmeades’s

affirmation was strictly in reply and whether or not there may be issues of bias which the Court might need to address.

[13]     There is a powerful argument available to Mr Miles QC, which I note Mr Brown QC does not accept as applicable here, that when dealing with any adjournment application the essential issue is whether the interests of justice require such an adjournment.  There are numerous dicta, which I need not replicate.  But the principles are fundamental.

[14]     With the advantage of hindsight the timetable orders of Harrison J, on 11

February, have not totally dealt with the shifting landscape.  There is no criticism, however, of counsel in that regard, nor, of course, of the Judge.

[15]     I consider the adjournment should be granted but on terms.   My essential reasons for so deciding are:

a)       Mr  Miles’s   assurance   that   there   are   matters   contained   in   Dr Edmeades’s affirmation which must be addressed by the Court (if only because they are before the Court) and on which the respondent has not had the opportunity of presenting evidence.

b)        The time constraints to which I have referred.

c)       The unusual situation arising out of Mr Miles’s submission that there will be attacks on Mr Edmeades’s objectivity and possibly expertise.

d)The somewhat unusual situation surrounding this appeal, which stems from  the  discovery,  after  the  appeal  had  been  lodged,  of  highly relevant new evidence and information.   Unfortunately previous directions have not enabled this additional evidence to be fully captured and dealt with by the parties.

[16]     Accordingly the fixture for 9 June 2010 is vacated.

[17]     A three day trial is directed, commencing Monday 23 August.

[18]     Costs are to be reserved.

[19]     Counsel  are  directed  to  confer  and  file  a  memorandum  marked  for  my attention no later than 5 pm on Tuesday 8 June 2010.  Such memorandum is to deal with:

a)        Those matters which are contained in Dr Edmeades’s affirmation to which the respondent wishes to reply.

b)        The name of the deponent who will be replying.

c)        A brief outline of the scope of that reply evidence.

[20]     In the unlikely event of counsel being unable to agree, I shall need to resolve areas of disagreement.

[21]     The same memorandum is to propose sensible timetable orders and directions to allow the appellant to reply to the respondents’ now authorised reply affirmations. In  that  regard  (so  far  as  both  parties  are  concerned)  I  expect  the  policy  and provisions of r 9.76 to be complied with strictly.

[22]     There appears to be a measure of common ground that if the respondent wishes to pursue its suggestion about Dr Edmeades’s impartiality this can be treated as a stand alone issue.   As I understand it, the respondent’s witness in that regard will be Mr Michael Manning.  The memorandum which I have directed is to deal too with any timetabling which might arise out of that deponent.

[23]   In terms of existing directions, designed to cover the filing of outline submissions, agreed bundles, and agreed paraphernalia of a hearing, my direction is that current dates should be extended to cover within approximately the same time- frame the new start date.

.......................................… Priestley J