Inamed Development Company v Morton Surgical Pty Limited [2007] FCA 1359

FEDERAL COURT OF AUSTRALIA

Inamed Development Company v Morton Surgical Pty Limited [2007] FCA 1359

PRACTICE AND PROCEDURE – whether leave should be granted to file late expert evidence in patent case – whether admissible – role of case management – proviso to protect other party Evidence Act 1995 (Cth), s 135 Federal Court of Australia Act 1976 (Cth), s 23 Federal Court Rules, O 10 Patents Act 1990 (Cth), s 7(2), s 7(3) Jupiters Ltd v Neurizon Pty Ltd (2005) 222 ALR 155 followed Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388cited Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) (2007) 235 ALR 202 cited Sali v SPC Ltd (1993) 116 ALR 625; (1993) 67 ALJR 841 cited State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146discussed INAMED DEVELOPMENT COMPANY AND INAMED PTY LIMITED (ABN 53 050 287 217) v MORTON SURGICAL PTY LIMITED (ABN 32 056 838 441) T/A MATRIX SURGICAL COMPANY NSD 2171 OF 2005

GYLES J

29 AUGUST 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2171 OF 2005

BETWEEN: INAMED DEVELOPMENT COMPANY

First Applicant/First Cross-Respondent

INAMED PTY LIMITED (ABN 53 050 287 217)

Second Applicant/Second Cross-Respondent

AND: MORTON SURGICAL PTY LIMITED (ABN 32 056 838 441) T/A MATRIX SURGICAL COMPANY

Respondent/Cross-Claimant

JUDGE: GYLES J

DATE OF ORDER: 29 AUGUST 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The respondent/cross-claimant have leave to rely upon the affidavit of Zoran Milijasevic sworn on 6 July 2007 save for paragraphs 23–39 (inclusive), 46 and 52–56 (inclusive) provided that such leave may be withdrawn in whole or in part upon proper cause being shown by the applicants/cross-respondents. 2. The respondent/cross-claimant pay the costs of the applicants/cross-respondents of and incidental to this application for leave and the costs of the applicants/cross-respondents thrown away by the late filing of the said affidavit.