Merial, Inc. v Intervet International B.V. (No 2) [2016] FCA 1070

Merial, Inc. v Intervet International B.V. (No 2) [2016] FCA 1070

Merial waived privilege by disclosing and relying on detailed privileged communications between its lawyers and Mr Pieloch about the subject-matter of the proceeding. The disputed communications were of essentially the same character, formed part of a continuum of dealings with the same prospective witness about the same proceeding, related to central issues, and Merial continued to rely on the disclosed communications in its notice of appeal; it was therefore inconsistent for Merial to maintain confidentiality over the other communications listed in annexure GF-41.

Jurisdiction
Australia
Judgment Date
02 September 2016
Procedural Posture
Appeal From a Decision of the Commissioner of Patents by Her Delegate in Relation to a Patent Application / Oral Application by the Respondent for Production of Documents on the Basis of Waiver of Legal Professional Privilege During the Hearing
Outcome
Intervet's application was granted; the Court held that Merial had waived legal professional privilege in relation to the documents listed in annexure GF-41.
Legal Topics
['production of Documents' 'legal Professional Privilege' 'waiver of Privilege' 'disclosure of Communications With Prospective Witness' 'patent Entitlement']
['practice and Procedure' 'intellectual Property' 'patents' 'evidence'] ['production of Documents' 'legal Professional Privilege' 'waiver of Privilege' 'disclosure of Communications With Prospective Witness' 'patent Entitlement']

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

Appeal From a Decision of the Commissioner of Patents by Her Delegate in Relation to a Patent Application / Oral Application by the Respondent for Production of Documents on the Basis of Waiver of Legal Professional Privilege During the Hearing

Legal Issues

  1. 1 ['Whether Merial waived legal professional privilege over communications listed in annexure GF-41 by filing and relying on the Fisher November 2015 Affidavit and annexures GF-8 to GF-12.' "Whether maintaining confidentiality over other communications between Merial's lawyers and Mr Mark Pieloch about the same subject-matter was inconsistent with Merial's disclosure and reliance on privileged communications with him." 'Whether the disputed communications had the same character as the communications in respect of which privilege had been waived.']

Ratio Decidendi

Merial waived privilege by disclosing and relying on detailed privileged communications between its lawyers and Mr Pieloch about the subject-matter of the proceeding. The disputed communications were of essentially the same character, formed part of a continuum of dealings with the same prospective witness about the same proceeding, related to central issues, and Merial continued to rely on the disclosed communications in its notice of appeal; it was therefore inconsistent for Merial to maintain confidentiality over the other communications listed in annexure GF-41.

Court Disposition

Intervet's application was granted; the Court held that Merial had waived legal professional privilege in relation to the documents listed in annexure GF-41.

Orders

  • ['The appellant produce to the respondent the documents in the list of communications being annexure GF-41 to the affidavit of Grant William Fisher sworn 30 August 2016.' 'Disclosure of the documents produced according to paragraph 1 be limited to external solicitors and counsel for the respondent and Mr Mark...