Alphapharm Pty Ltd v Lundbeck Australia Pty Ltd [2006] FCA 1358

FEDERAL COURT OF AUSTRALIA Alphapharm Pty Ltd v Lundbeck Australia Pty Ltd [2006] FCA 1358 PRACTICE AND PROCEDURE – inspection of discovered documents – whether documents discovered should be made available for inspection by internal counsel of other party – confidentiality – whether discovering party claiming confidentiality established that numerous documents marked "Confidential – External Counsel only" should not be inspected by other party's internal counsel – internal counsel a solicitor holding a current unrestricted practising certificate who had been previously employed by the external solicitors for the party seeking the order permitting inspection by him – onus of proof. Held: claim to withhold inspection of the documents as a class not made out, but leave reserved to apply in respect of particular documents. ALPHAPHARM PTY LTD (ACN 002 359 739) v H LUNDBECK A/S AND LUNDBECK AUSTRALIA PTY LTD (ACN 070 094 290) NSD 1120 OF 2005 LUNDBECK AUSTRALIA PTY LTD (ACN 070 094 290) v SECRETARY OF THE DEPARTMENT OF HEALTH & AGEING OF THE COMMONWEALTH OF AUSTRALIA AND ALPHAPHARM PTY LTD NSD 1870 OF 2005 LINDGREN J 29 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NSD 1120 OF 2005

NEW SOUTH WALESDISTRICT REGISTRY

BETWEEN: ALPHAPHARM PTY LTD (ACN 002 359 739)

Applicant/Cross-respondent

AND: H LUNDBECK A/S

Respondent/First Cross-claimant

LUNDBECK AUSTRALIA PTY LTD (ACN 070 094 290)

Second Cross-claimant

JUDGE: LINDGREN J

DATE OF ORDER: 29 SEPTEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The solicitors for the applicant be entitled to disclose the documents discovered and designated "Confidential – External Counsel Only" by the respondent/first cross-claimant and the second cross-claimant, to Dr Frank Traugott, subject to his first giving an undertaking in suitable form. 2. Disclosure not take place until Friday 13 October 2006. 3. The respondent/first cross-claimant and the second cross-claimant have leave to file a notice of motion by Friday 13 October 2006, seeking an order that a particular document or documents be excluded from order 1. 4. Any notice of motion filed by the respondent/first cross-claimant and second cross-claimant by Friday 13 October 2006 be returnable on Wednesday 18 October 2006 at 9:30am. 5. If the respondent/first cross-claimant and the second cross-claimant file a notice of motion pursuant to the leave given in order 3, order 1 will not apply to the document or documents the subject of the notice of motion until the final hearing and determination of the motion. 6. The respondent/first cross-claimant and the second cross-claimant pay the applicant's costs of the applicant's motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.