Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Inverness Medical Switzerland GmbH v MDS Diagnostics Pty Limited [2007] FCA 1296
INVERNESS MEDICAL SWITZERLAND GMBH v MDS DIAGNOSTICS PTY LIMITED AND MDS DIAGNOSTICS LIMITED NSD 1722 OF 2006
ALLSOP J
17 AUGUST 2007
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1722 OF 2006
BETWEEN: INVERNESS MEDICAL SWITZERLAND GMBH
Applicant
AND: MDS DIAGNOSTICS PTY LIMITED
First Respondent
MDS DIAGNOSTICS LIMITED
Second Respondent
JUDGE: ALLSOP J
DATE OF ORDER: 17 AUGUST 2007
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The hearing commencing on 8 October 2007 be vacated. 2. Leave be granted to the applicant to file an amended application in the form annexed to the notice of motion dated 10 August 2007 and marked "A". 3. Leave be granted to the applicant to file an amended statement of claim in the form annexed to the notice of motion dated 10 August 2007 and marked "B". 4. Pursuant to Order 8 rule 3(2) of the Federal Court Rules, leave is given to the applicant to serve the amended application, amended statement of claim, particulars of infringement, this notice of motion, the orders made pursuant to this notice of motion, and the following affidavits: Affidavit of Elizabeth Eldred Houlihan sworn 28 August 2006; Affidavit of Mark Stephen Volling sworn 1 September 2006; Affidavit of Susan Jane Drummond sworn 6 September 2006; Affidavit of Martin Joseph O'Connor sworn 6 September 2006; Affidavit of Martin Joseph O'Connor sworn 10 September 2006 (not including the confidential schedule and the confidential exhibits thereto); Affidavit of Martin Joseph O'Connor sworn 17 August 2007; upon Dr Prakash Appanna outside the Commonwealth of Australia and in New Zealand, such service to be effected by a private service agent personally serving Dr Appanna with those documents on or before 31 August 2007. 5. Orders 2 to 9 made on 10 April 2007 be vacated. 6. The matter be listed for further directions on 14 September 2007 at 2:15 pm as between the applicant and the first and second respondents and on 9 October 2007 at 9:30 am for all parties, including the third, fourth and fifth respondents. 7. On or before 7 September 2007, the first and second respondents serve on the applicant any application to file and serve any cross-claim as to invalidity, together with the form of that cross-claim, particulars of the invalidity and an affidavit in support of the claim for invalidity. 8. On 14 September 2007, the first and second respondents bring forward any application to join any party to the proceedings, whether in or out of Australia, having served the application and supporting materials upon the applicant by 12 September 2007. 9. The exhibits tendered on the hearing of the applicant's motion be returned on the undertaking of Mr O'Connor to keep them intact until a time after the appearance of the third, fourth and fifth respondents at which time it is apparent that no objection to joinder is made. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA
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