GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150

GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150

The primary judge was correct in concluding there was no reasonable apprehension of bias, as the remarks and conduct occurred in the context of interlocutory proceedings involving assessment at a prima facie level, not final determination. The objective fair-minded observer would appreciate the provisional status of such views, and nothing indicated predetermination of the facts or credibility. Although the finding on waiver was incorrect, this had no effect, because the absence of reasonable apprehension of bias defeated the application.

Parties
Appellant: GlaxoSmithKline Australia Pty Ltd; First Respondent: Reckitt Benckiser Healthcare (UK) Limited; Second Respondent: Reckitt Benckiser (Australia) Limited
Jurisdiction
Australia
Judgment Date
02 December 2013
Procedural Posture
Appeal / Application for Leave to Appeal (apprehended Bias); Judgment on Application
Outcome
Application for leave to appeal dismissed
Legal Topics
Apprehended Bias, Recusal, Interlocutory Injunctions, Waiver of Objection, Patent Litigation
Practice and Procedure Apprehended Bias Recusal Interlocutory Injunctions Waiver of Objection Patent Litigation

Case Brief

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Parties

GlaxoSmithKline Australia Pty Ltd

Appellant

Reckitt Benckiser Healthcare (UK) Limited

First Respondent

Reckitt Benckiser (Australia) Limited

Second Respondent

Procedural Posture

Appeal / Application for Leave to Appeal (apprehended Bias); Judgment on Application

Legal Issues

  1. 1 Whether remarks made by the primary judge created a reasonable apprehension of bias justifying recusal from the final hearing
  2. 2 Whether GSK waived its right to object to the primary judge continuing due to not raising the issue before the Full Court

Ratio Decidendi

The primary judge was correct in concluding there was no reasonable apprehension of bias, as the remarks and conduct occurred in the context of interlocutory proceedings involving assessment at a prima facie level, not final determination. The objective fair-minded observer would appreciate the provisional status of such views, and nothing indicated predetermination of the facts or credibility. Although the finding on waiver was incorrect, this had no effect, because the absence of reasonable apprehension of bias defeated the application.

Court Disposition

Application for leave to appeal dismissed

Orders

  • The application for leave to appeal be dismissed.
  • The applicant pay the respondents' costs.