Pfizer Australia Pty Ltd v Probiotec Pharma Pty Ltd [2010] NSWSC 532

Pfizer Australia Pty Ltd v Probiotec Pharma Pty Ltd [2010] NSWSC 532

Leave to amend was refused because, although the tendered evidence appeared capable of supporting a submission that AZPA's conduct was egregious, the countervailing considerations were weightier: the Court could not exclude the real possibility that AZPA would or might have conducted its case differently had the serious allegation of fraud been pleaded earlier, and there was no or little explanation for the delay in seeking leave until after the evidence had closed, despite the supporting material having been served a substantial time earlier.

Jurisdiction
Australia
Judgment Date
21 May 2010
Procedural Posture
Application for Leave to Amend Pleading / Late in Trial After the Close of Evidence; Ex Tempore Judgment
Outcome
Probiotec's application for leave to amend to plead fraud against AZPA is dismissed.
Legal Topics
['leave to Amend Pleading' 'pleading Fraud or Deceit' 'case Management' 'prejudice From Late Amendment' 'apportionable Claims' 'strict Contractual Performance Duties']
['civil Procedure' 'contract' 'tort' 'proportionate Liability' 'trade Practices'] ['leave to Amend Pleading' 'pleading Fraud or Deceit' 'case Management' 'prejudice From Late Amendment' 'apportionable Claims' 'strict Contractual Performance Duties']

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Procedural Posture

Application for Leave to Amend Pleading / Late in Trial After the Close of Evidence; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether Probiotec should be granted leave to amend its pleading after the close of evidence to allege that AZPA committed deceit by fraudulently representing that the paracetamol supplied was Compap-L 0093 manufactured by Mallinckrodt.' 'Whether the proposed late fraud amendment would prejudice AZPA because AZPA might have conducted its case differently had fraud been pleaded earlier.' "Whether there was an adequate explanation for Probiotec's delay in seeking leave to amend." 'Whether the proportionate liability regime applies to claims for breach of strict contractual performance duties was identified as a lively issue but left aside for present purposes.']

Ratio Decidendi

Leave to amend was refused because, although the tendered evidence appeared capable of supporting a submission that AZPA's conduct was egregious, the countervailing considerations were weightier: the Court could not exclude the real possibility that AZPA would or might have conducted its case differently had the serious allegation of fraud been pleaded earlier, and there was no or little explanation for the delay in seeking leave until after the evidence had closed, despite the supporting material having been served a substantial time earlier.

Court Disposition

Probiotec's application for leave to amend to plead fraud against AZPA is dismissed.

Orders

  • ["Probiotec's application for leave to amend to plead fraud against AZPA is dismissed."]