Otsuka Pharmaceutical Co., Ltd v Generic Health Pty Ltd (No 3) [2013] FCA 689

Otsuka Pharmaceutical Co., Ltd v Generic Health Pty Ltd (No 3) [2013] FCA 689

Because the Court could not come to a concluded view at that stage on whether Dr Phillips' affidavit was evidence in chief or evidence in reply, and leaving the matter unresolved would create undesirable uncertainty, leave should be granted for the applicants to rely on the affidavit as evidence in chief. Any inconvenience to the respondent could be addressed by giving it time to file answering affidavit evidence, and there was no countervailing prejudice sufficient to deny leave.

Jurisdiction
Australia
Judgment Date
12 July 2013
Procedural Posture
Patent Proceeding / Interlocutory Application Filed by the Respondent Concerning Whether the Applicants May Rely on the Affidavit of Jonathan Phillips Affirmed and Filed on 13 June 2013
Outcome
The respondent was given an extension of time to file affidavit evidence in answer to Dr Phillips' affidavit.
Legal Topics
['affidavit Evidence' 'evidence in Chief' 'evidence in Reply' 'leave to Rely on Evidence' 'extension of Time']
['patent Law' 'civil Procedure' 'evidence'] ['affidavit Evidence' 'evidence in Chief' 'evidence in Reply' 'leave to Rely on Evidence' 'extension of Time']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Patent Proceeding / Interlocutory Application Filed by the Respondent Concerning Whether the Applicants May Rely on the Affidavit of Jonathan Phillips Affirmed and Filed on 13 June 2013

Legal Issues

  1. 1 ['Whether the affidavit of Jonathan Phillips should be treated as evidence in chief or evidence in reply' "Whether the applicants should be granted leave to rely on Dr Phillips' affidavit if it is evidence in chief" 'Whether the respondent should have time to file affidavit evidence in answer']

Ratio Decidendi

Because the Court could not come to a concluded view at that stage on whether Dr Phillips' affidavit was evidence in chief or evidence in reply, and leaving the matter unresolved would create undesirable uncertainty, leave should be granted for the applicants to rely on the affidavit as evidence in chief. Any inconvenience to the respondent could be addressed by giving it time to file answering affidavit evidence, and there was no countervailing prejudice sufficient to deny leave.

Court Disposition

The respondent was given an extension of time to file affidavit evidence in answer to Dr Phillips' affidavit.

Orders

  • ['The period of time within which the respondent can file affidavit evidence in answer to the affidavit of Jonathon Phillips filed on 13 June 2013 be extended to 11 September 2013.']