Inamed Development Company v Morton Surgical Pty Limited [2007] FCA 1359

Inamed Development Company v Morton Surgical Pty Limited [2007] FCA 1359

Leave is granted to rely on specified parts of the affidavit as only some paragraphs are considered potentially relevant and admissible for issues such as inventive step and infringement, but this is on condition that the applicants can seek withdrawal of leave if they are unable to fairly meet the evidence due to its lateness. Costs of the application and any costs wasted due to the late evidence are awarded against the respondent/cross-claimant to protect the other party from prejudice.

Jurisdiction
Australia
Judgment Date
29 August 2007
Procedural Posture
Interlocutory Application / Application for Leave to File Late Expert Evidence Prior to Trial
Outcome
Leave granted in part, with protective proviso and costs against respondent/cross-claimant.
Legal Topics
['admissibility of Expert Evidence' 'case Management' 'inventive Step' 'late Filing of Evidence']
['intellectual Property' 'patents' 'civil Procedure'] ['admissibility of Expert Evidence' 'case Management' 'inventive Step' 'late Filing of Evidence']

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Procedural Posture

Interlocutory Application / Application for Leave to File Late Expert Evidence Prior to Trial

Legal Issues

  1. 1 ['Whether leave should be granted to file late expert evidence in a patent case' 'Whether the late expert evidence is admissible under the Evidence Act 1995 (Cth)' 'The relevance of the evidence to inventive step and infringement issues' 'Impact of late evidence on case management and the opposing party']

Ratio Decidendi

Leave is granted to rely on specified parts of the affidavit as only some paragraphs are considered potentially relevant and admissible for issues such as inventive step and infringement, but this is on condition that the applicants can seek withdrawal of leave if they are unable to fairly meet the evidence due to its lateness. Costs of the application and any costs wasted due to the late evidence are awarded against the respondent/cross-claimant to protect the other party from prejudice.

Court Disposition

Leave granted in part, with protective proviso and costs against respondent/cross-claimant.

Orders

  • ['The respondent/cross-claimant have leave to rely upon the affidavit of Zoran Milijasevic sworn on 6 July 2007 save for paragraphs 23–39 (inclusive), 46 and 52–56 (inclusive), provided that such leave may be withdrawn in whole or in part upon proper cause being shown by the applicants/cross-respondents.' 'The...