MDS Diagnostics Pty Limited v Inverness Medical Switzerland GmbH

REASONS FOR JUDGMENT 1 The respondent to this appeal seeks security for costs of the appeal. On 22 February 2010, a judge of the Court gave judgment in favour of the respondent. On 22 July 2010, orders were made disposing of the liability aspects of the proceeding. The proceeding involved a claim for infringement of four patents. The claim was brought by the respondent to the appeal, Inverness Medical Switzerland, against the first appellant MDS Diagnostics Pty Limited, a New Zealand company named MDS Diagnostics Limited and the third appellant, Dr Prakash Appanna. Dr Appanna is the managing director of the two companies and he was sued on the basis that he was liable for the infringements of the companies as a joint tortfeasor and by authorising their infringements. 2 A cross-claim for revocation of the four patents and for unjustified threats was brought by the companies. As I have said, Inverness was successful in the proceeding. Since the commencement of the appeal, MDS Diagnostics Limited has been wound up, and it is appropriate that the appeal be dismissed with costs insofar as it is brought by that company. There was no opposition to an order for security in respect of the first appellant, however the court was asked to deal with the appeal by Dr Appanna on a different basis. Dr Appanna is a resident of New Zealand and has no assets in Australia. There is some evidence that he is acting in a representative capacity in the proceeding. 3 The respondent has asked for an order for security for costs in the sum of $60,000. Nothing has been said on behalf of the appellants as to the quantum. It was suggested that if security is not provided by the first appellant, there should be no stay so far as Dr Appanna is concerned in relation to his claim that even if the companies were liable, he was not a joint tortfeasor. As Dr Appanna is a resident of New Zealand and has no assets in Australia and there is no evidence as to his financial position, I do not consider it is appropriate to deal with him separately. 4 Accordingly, I order that security in the sum of $60,000 be provided on behalf of the first and third appellants in a form acceptable to the Registrar and order that in default of provision of such security, the prosecution of the appeal be stayed until further order. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.