The University of Sydney v ResMed Ltd (No 2) [2008] FCA 1969

FEDERAL COURT OF AUSTRALIA

The University of Sydney v ResMed Ltd (No 2) [2008] FCA 1969

PRACTICE AND PROCEDURE – pleadings – motion to strike out – both parties having measure of success – no order as to costs. Federal Court of Australia Act 1976 (Cth) s 31A Federal Court Rules O 11 r 16 Bullen & Leake & Jacob's Precedents of Pleadings (16th ed, London, Sweet & Maxwell, 2008) THE UNIVERSITY OF SYDNEY v RESMED LTD

NSD 200 of 2007

LINDGREN J

23 DECEMBER 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 200 of 2007

BETWEEN: THE UNIVERSITY OF SYDNEY

Applicant/Cross-Respondent

AND: RESMED LTD

Respondent/Cross-Claimant

JUDGE: LINDGREN J

DATE OF ORDER: 23 DECEMBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The applicant have leave to file and serve a second further amended statement of claim consistent with reasons for judgment delivered on 23 December 2008. 2. Any second further amended statement of claim be filed and served by 30 January 2009. 3. The proceeding be stood over to Friday 6 February 2009 at 9:30am for directions. 4. The applicant's motion and the respondent's motion be otherwise dismissed. THE COURT NOTES THAT: 5. There is no order for costs on the applicant's motion or the respondent's motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 200 of 2007

BETWEEN: THE UNIVERSITY OF SYDNEY

Applicant/Cross-Respondent

AND: RESMED LTD

Respondent/Cross-Claimant

JUDGE: LINDGREN J

DATE: 23 DECEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT (No 2)

Introduction 1 These reasons for judgment relate to two motions: a motion by the respondent (ResMed) for an order pursuant to O 11 r 16 of the Federal Court Rules (Cth) (Rules) striking out certain paragraphs of the existing further amended statement of claim (FASOC) or, alternatively, pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) giving judgment for ResMed in relation to the claims the subject of those paragraphs, and a motion by the applicant (the University) for leave to file a second further amended statement of claim in the form annexed to the University's notice of motion (SFASOC). 2 On 4 July 2008 I gave judgment on a discovery dispute between the parties: see The University of Sydney v ResMed Ltd [2008] FCA 1020 (the Discovery Judgment). 3 The claims made and remedies sought by the University in this proceeding are extensive. The parties' dealings began in 1991, and possibly earlier, and it seems that if the case proceeds to a hearing, the evidence will be, to put it mildly, vast and detailed. 4 No doubt such considerations have played a part in prompting ResMed to challenge the University's entitlement to discovery against it, and now to challenge the University's pleading. 5 I do not blame ResMed for seeking to confine the University's case. However, my task is to deal with the motions in accordance with the legal principles that govern pleadings. It is not to the point that the proceeding was not commenced until 2007, 16 years after the Licensing Agreement of 17 May 1991 which lies at the heart of the proceeding, or that in certain respects the University, in its SFASOC, has taken a stance different from that which it took in earlier forms of the pleading. 6 ResMed filed and served its original notice of motion on 4 July 2008, the date of delivery of the Discovery Judgment. On 17 July 2008 it filed an amended notice of motion seeking, relevantly, the following order: That, pursuant to Order 11 rule 16 of the Federal Court Rules, paragraphs 15(a), (b), (c), (f) and (g), 22, 26A, 38 and 41 of the Applicant's Further Amended Statement of Claim (FASOC) be struck out on the grounds that they disclose no reasonable cause of action or have a tendency to cause prejudice, embarrassment or delay in the proceeding, or alternatively, pursuant to section 31A(2) of the Federal Court of Australia Act 1976, judgment be given for the Respondent/Cross-Claimant in relation to the claims the subject of those paragraphs on the ground that these claims have no reasonable prospect of success. 7 On 8 July 2008, the University's solicitors advised ResMed's solicitors of the University's intention to amend its FASOC along the lines suggested in the Discovery Judgment on 8 July 2008. On 15 August 2008 the University filed a notice of motion seeking leave to file its SFASOC. 8 Certain aspects of the University's SFASOC amend parts of its FASOC which were the subject of attack in ResMed's amended notice of motion. On the hearing, argument took place with reference to the SFASOC.