University of Sydney v ResMed Limited (No 4) [2010] FCA 1403

University of Sydney v ResMed Limited (No 4) [2010] FCA 1403

Because the prior orders contemplated that the University would provide evidence about the alleged disclosure of Information and prototypes before ResMed gave the balance of its discovery, and because there was a real possibility that later Category 8 discovery could contaminate that evidence and that deferring such evidence until trial would severely disrupt the proceeding, the Court would impose a strict timetable requiring the University to file and serve all evidence in chief on that issue before ResMed gave remaining discovery. However, the Court would not order the University to provide an affidavit from Professor Sullivan specifically, because such an order was likely incapable of...

Jurisdiction
Australia
Judgment Date
16 December 2010
Procedural Posture
Interlocutory Notice of Motion in Patent Infringement, Licensing Agreement and Breach of Confidence Proceeding / Pre Trial Case Management Concerning Affidavit Evidence and Discovery
Outcome
Proceeding listed for the making of orders in accordance with the reasons; parties directed to provide short minutes. The Court declined to order the University to file an affidavit of Professor Sullivan and declined to make the proposed pre-trial examination order in the terms sought.
Legal Topics
['case Management' 'pre Trial Affidavit Evidence' 'discovery' 'unco Operative Witness' 'patent Infringement' 'licensing Agreement' 'equitable Duty of Confidence']
['practice and Procedure' 'intellectual Property' 'confidential Information' 'contract'] ['case Management' 'pre Trial Affidavit Evidence' 'discovery' 'unco Operative Witness' 'patent Infringement' 'licensing Agreement' 'equitable Duty of Confidence']

Case Brief

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Procedural Posture

Interlocutory Notice of Motion in Patent Infringement, Licensing Agreement and Breach of Confidence Proceeding / Pre Trial Case Management Concerning Affidavit Evidence and Discovery

Legal Issues

  1. 1 ['Whether the University should be ordered to file and serve an affidavit in chief of Professor Colin Sullivan relating to the disclosure of Information and prototypes to ResMed.' 'Whether, alternatively, Professor Sullivan should be examined on oath or affirmation before trial under section 46 of the Federal Court of Australia Act 1976 and Order 24 rule 1(1)(a) of the Federal Court Rules.' "Whether ResMed's obligation to give discovery and production in Category 8 should be deferred until after the University has put on evidence concerning Information and prototypes."]

Ratio Decidendi

Because the prior orders contemplated that the University would provide evidence about the alleged disclosure of Information and prototypes before ResMed gave the balance of its discovery, and because there was a real possibility that later Category 8 discovery could contaminate that evidence and that deferring such evidence until trial would severely disrupt the proceeding, the Court would impose a strict timetable requiring the University to file and serve all evidence in chief on that issue before ResMed gave remaining discovery. However, the Court would not order the University to provide an affidavit from Professor Sullivan specifically, because such an order was likely incapable of...

Court Disposition

Proceeding listed for the making of orders in accordance with the reasons; parties directed to provide short minutes. The Court declined to order the University to file an affidavit of Professor Sullivan and declined to make the proposed pre-trial examination order in the terms sought.

Orders

  • ['The proceeding be listed for the making of orders in accordance with these reasons at 2.15pm on Tuesday 21 December 2010 or at such other time as the Court directs.' 'The parties are to provide agreed short minutes of order to be made in accordance with these reasons or, in default of agreement, short minutes of...