Mylan Health Pty Ltd v Sun Pharma ANZ Pty Ltd [2019] FCA 411

Mylan Health Pty Ltd v Sun Pharma ANZ Pty Ltd [2019] FCA 411

The notice to produce should not be set aside because, as construed by the Court, each category sought documents adjectivally relevant to the interim injunction application and the balance of convenience. The first category was sufficiently directed to the appellants' consideration of launching an authorised generic fenofibrate product and was not oppressive despite lacking a date restriction. The second category was to be read as limited to PBS listing for the authorised generic product referred to in Mr Vigneault's affidavit. The third category was directed to customer communications concerning that product and was not unduly broad. Potential privilege or confidentiality could be...

Jurisdiction
Australia
Judgment Date
25 March 2019
Procedural Posture
Application to Set Aside Notice to Produce in Patent Appeal Proceedings / Interlocutory Application Dated 15 March 2019
Outcome
Application to set aside the notice to produce dismissed with costs.
Legal Topics
['notice to Produce' 'interim Injunctive Relief' 'adjectival Relevance' 'oppression' 'privilege' 'confidentiality' 'balance of Convenience' 'pharmaceutical Benefits Scheme Listing']
['practice and Procedure' 'intellectual Property' 'patents'] ['notice to Produce' 'interim Injunctive Relief' 'adjectival Relevance' 'oppression' 'privilege' 'confidentiality' 'balance of Convenience' 'pharmaceutical Benefits Scheme Listing']

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Procedural Posture

Application to Set Aside Notice to Produce in Patent Appeal Proceedings / Interlocutory Application Dated 15 March 2019

Legal Issues

  1. 1 ['Whether the notice to produce should be set aside as oppressive, imprecise, ambiguous, unduly broad or lacking adjectival relevance.' "Whether documents concerning Mylan's consideration of launching an authorised generic fenofibrate product were adjectivally relevant to the interim injunction application." "Whether applications to list an authorised generic fenofibrate product on the Pharmaceutical Benefits Scheme were adjectivally relevant when limited to the product referred to in Mr Vigneault's affidavit." 'Whether communications to customers concerning the proposed authorised generic fenofibrate product were unduly broad or adjectivally relevant.' 'Whether possible privilege or confidentiality justified setting aside the notice to produce.']

Ratio Decidendi

The notice to produce should not be set aside because, as construed by the Court, each category sought documents adjectivally relevant to the interim injunction application and the balance of convenience. The first category was sufficiently directed to the appellants' consideration of launching an authorised generic fenofibrate product and was not oppressive despite lacking a date restriction. The second category was to be read as limited to PBS listing for the authorised generic product referred to in Mr Vigneault's affidavit. The third category was directed to customer communications concerning that product and was not unduly broad. Potential privilege or confidentiality could be...

Court Disposition

Application to set aside the notice to produce dismissed with costs.

Orders

  • ['The interlocutory application dated 15 March 2019 be dismissed.' "Save in respect of documents for which a claim of privilege is made, in the first instance production of the documents sought in the notice to produce dated 11 March 2019 be made informally by producing copies of the same to the first respondent's...