CSL Limited v Novo Nordisk Pharmaceuticals Pty Ltd

REASONS FOR JUDGMENT 1 On 1 November 2013, the applicants issued an interlocutory application in which they sought a number of orders including the following order: (1) Subject to order 2, the Applicants/Cross-respondents have leave: (a) to review the documents discovered and produced by the Respondents/Cross-claimants in this proceeding (discovered documents) to identify which, if any, the Applicants/Cross-respondents contend are relevant to any issue in dispute in Appeal No T 137/10 before Technical Board of Appeal 3.3.04 in the European Patent Office in relation to European Patent No EP088973 (EPO proceeding); and (b) to use and disclose, in the EPO proceeding, any discovered document which the Applicants/Cross-respondents contend is relevant to an issue in dispute in the EPO proceeding. 2 The second order sought by the applicants in the application related to the persons to whom the discovered documents could be disclosed for the purpose of the review referred to in paragraph 1(a), and the third order related to the variation of confidentiality orders previously made in the proceeding. 3 On 1 November 2013, the solicitors for the applicants sent a letter to the Court (with a copy to the respondents) in which they said, among other things: The Applicants will first seek a direction that certain of their personnel and external legal representatives, as identified in their application, have leave to review the Respondents' discovered documents. Following that review, the Applicants propose to file further affidavit material identifying which of the discovered documents they consider relevant to the European Patent Office proceeding, and their reasons why. 4 The order sought in paragraph 1(a) was stage one of the application, and the order sought in paragraph 1(b) was stage two. 5 The applicants were successful in obtaining an order substantially in terms of paragraph 1(a) on 13 November 2013. That was with the consent of the respondents, save as to one matter, which was the subject of submissions to another judge of this Court (Davies J) on 8 November 2013. The area of dispute related to whether the persons permitted to review the documents could include two European patent attorneys. I have read the transcript of the hearing. The judge intimated that she would decide that issue in favour of the applicants, and invited the parties to confer with a view to reaching agreement as to the appropriate orders, including confidentiality orders. That was done and resulted in the orders made on 13 November 2013. 6 The applicants then filed and served affidavit evidence identifying the documents which they contended were relevant for the purpose of the order sought in paragraph 1(b) of the application and expert evidence. The respondents filed and served affidavit evidence in support of their opposition to the application. 7 The application for the order in paragraph 1(b) came on for hearing before me on 27 November 2013. On 4 December 2013, I made an order as follows: (1) Except to the extent provided for in the orders made by Davies J on 13 November 2013, the applicants' interlocutory application dated 1 November 2013 be dismissed. (CSL Limited v Novo Nordisk Pharmaceuticals Pty Ltd [2013] FCA 1307). 8 The respondents seek an order that the applicants pay all their costs of the interlocutory application dated 1 November 2013. The applicants seek an order that the respondents pay their costs of and incidental to the hearing before Davies J on 8 November 2013, but otherwise, made no submission as to the costs of stage two of the application. 9 The principal order sought by the applicants was the order in paragraph 1(b). That was the order which, if made, would have a material bearing on their interests. They were unsuccessful. The orders in the form of paragraph 1(a) were, for the most part, made by consent. I do not think that the dispute about disclosure to the European patent attorneys was sufficiently separate or substantial to warrant a different order as to costs with respect to the hearing on 8 November 2013 from that order appropriate to the interlocutory application as a whole. Nor do I think the respondents' conduct to be so unreasonable as to warrant a different order in relation to the hearing on 8 November 2013. 10 I think the appropriate order in the circumstances is that sought by the respondents, namely, the applicants pay the respondents' costs of and incidental to the applicants' interlocutory application dated 1 November 2013, to be taxed in default of agreement, and I will so order. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.