University of Western Australia v Gray

CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)

1 In University of Western Australia v Gray (No 28) [2010] FCA 586, handed down by me on 10 June 2010, I assessed the damages payable on Sirtex's successful cross‑claim against Dr Gray for damages for loss of commercial opportunity. I then invited the parties to bring forward a minute of orders that should be made, taking into account the findings I had made.

2 On 23 June 2010, the parties provided a minute of orders, which they had agreed. The orders proposed reflect the findings made by me and finally calculate the damages payable.

3 So far as the amount of damages in proposed order 1 is concerned, it is calculated as follows:

· In [154] of my reasons for decision, I allowed (in principle) item 2 of the damages claimed, as set out in the Further Revised Annexure A dated 10 November 2009, in the sum of $2,121,814.55. · However, the item 2 sum was required to be reduced by $50,715.96 (the amount claimed in item 6) pursuant to my finding in [175]. · That reduced sum was then to be increased by the sum of $2,106.57 (being the amount claimed in item 7) pursuant to my finding in [176]. · In accordance with my finding, at [190], Sirtex is entitled to 86% of the total sum then arrived at, that is $2,073,205.09 x 86% = $1,762,224.33.

4 As to the amount of interest in order 2, it is calculated as follows:

· 6% per annum x $1,762,224.33 for the period from 1 April 2007 to 10 June 2010 = $338,057.39. · 6% per annum x $3,000,000 for the period from 1 April 2007 to 18 November 2009, the latter being the date that Sirtex received payment of costs from University of Western Australia in the primary proceeding = $474,904.11. · Total interest payable - $812,961.50.

1. The first respondent pay the second respondent the sum of $1,762,224.33 as damages in respect of the second respondent's cross‑claim against the first respondent. 2. The first respondent pay the second respondent the sum of $812,961.50 as interest on the costs incurred by the second respondent including the amount in order 1 of these orders. 3. The first respondent pay the second respondent's costs of the assessment of damages in respect of the second respondent's cross‑claim against the first respondent. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.