FEDERAL COURT OF AUSTRALIA University of Western Australia v Gray (No 29) [2010] FCA 665 Citation: University of Western Australia v Gray (No 29) [2010] FCA 665 Parties: THE UNIVERSITY OF WESTERN AUSTRALIA v BRUCE NATHANIAL GRAY, SIRTEX MEDICAL LIMITED (FORMERLY KNOWN AS PARAGON MEDICAL PTY LTD) (ACN 078 166 122), CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005); BRUCE NATHANIAL GRAY v THE UNIVERSITY OF WESTERN AUSTRALIA and YAN CHEN SIRTEX MEDICAL LIMITED (ACN 078 166 122) v BRUCE NATHANIAL GRAY and CANCER RESEARCH INSTITUTE INCORPORATED File number: WAD 292 of 2004 Judge: BARKER J Date of judgment: 24 June 2010 Catchwords: DAMAGES– final orders as to damages and costs Cases cited: University of Western Australia v Gray (No 28) [2010] FCA 586 Date of hearing: 10 November 2009 Date of last submissions: 12 November 2009 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 5 Counsel for the First Respondent: Mr AJ Meagher SC and Mr GKJ Rich Solicitor for the First Respondent: Goldsmiths Lawyers Counsel for the Second Respondent: Mr JD Elliot SC and Mr EJC Heerey Solicitor for the Second Respondent: Yeldham Price O'Brien Lusk IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 292 of 2004 BETWEEN: THE UNIVERSITY OF WESTERN AUSTRALIA Applicant AND: BRUCE NATHANIAL GRAY First Respondent SIRTEX MEDICAL LIMITED (FORMERLY KNOWN AS PARAGON MEDICAL PTY LTD) (ACN 078 166 122) Second Respondent CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005) Third Respondent BRUCE NATHANIAL GRAY First Cross-Claimant THE UNIVERSITY OF WESTERN AUSTRALIA First Cross-Respondent to First Cross‑Claim YAN CHEN Second Cross-Respondent SIRTEX MEDICAL LIMITED Second Cross-Claimant THE UNIVERSITY OF WESTERN AUSTRALIA Cross-Respondent to Second Cross‑Claim BRUCE NATHANIAL GRAY Second Cross-Respondent to Second Cross‑Claim CANCER RESEARCH INSTITUTE INCORPORATED Third Cross-Respondent to Second Cross‑Claim JUDGE: BARKER J DATE OF ORDER: 24 JUNE 2010 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The first respondent pay the second respondent the sum of $1,762,224.33 as damages in respect of the second respondent's cross‑claim against the first respondent. 2. The first respondent pay the second respondent the sum of $812,961.50 as interest on the costs incurred by the second respondent including the amount in order 1 of these orders. 3. The first respondent pay the second respondent's costs of the assessment of damages in respect of the second respondent's cross‑claim against the first respondent. 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 Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 292 of 2004 BETWEEN: THE UNIVERSITY OF WESTERN AUSTRALIA Applicant AND: BRUCE NATHANIAL GRAY First Respondent SIRTEX MEDICAL LIMITED (FORMERLY KNOWN AS PARAGON MEDICAL PTY LTD) (ACN 078 166 122) Second Respondent CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005) Third Respondent BRUCE NATHANIAL GRAY First Cross-Claimant THE UNIVERSITY OF WESTERN AUSTRALIA First Cross-Respondent to First Cross‑Claim YAN CHEN Second Cross-Respondent SIRTEX MEDICAL LIMITED Second Cross-Claimant THE UNIVERSITY OF WESTERN AUSTRALIA Cross-Respondent to Second Cross‑Claim BRUCE NATHANIAL GRAY Second Cross-Respondent to Second Cross‑Claim CANCER RESEARCH INSTITUTE INCORPORATED Third Cross-Respondent to Second Cross‑Claim JUDGE: BARKER J DATE: 24 JUNE 2010 PLACE: PERTH REASONS FOR JUDGMENT 1 In University of Western Australia v Gray (No 28) [2010] FCA 586, handed down by me on 10 June 2010, I assessed the damages payable on Sirtex's successful cross‑claim against Dr Gray for damages for loss of commercial opportunity. I then invited the parties to bring forward a minute of orders that should be made, taking into account the findings I had made. 2 On 23 June 2010, the parties provided a minute of orders, which they had agreed. The orders proposed reflect the findings made by me and finally calculate the damages payable. 3 So far as the amount of damages in proposed order 1 is concerned, it is calculated as follows: · In [154] of my reasons for decision, I allowed (in principle) item 2 of the damages claimed, as set out in the Further Revised Annexure A dated 10 November 2009, in the sum of $2,121,814.55. · However, the item 2 sum was required to be reduced by $50,715.96 (the amount claimed in item 6) pursuant to my finding in [175]. · That reduced sum was then to be increased by the sum of $2,106.57 (being the amount claimed in item 7) pursuant to my finding in [176]. · In accordance with my finding, at [190], Sirtex is entitled to 86% of the total sum then arrived at, that is $2,073,205.09 x 86% = $1,762,224.33. 4 As to the amount of interest in order 2, it is calculated as follows: · 6% per annum x $1,762,224.33 for the period from 1 April 2007 to 10 June 2010 = $338,057.39. · 6% per annum x $3,000,000 for the period from 1 April 2007 to 18 November 2009, the latter being the date that Sirtex received payment of costs from University of Western Australia in the primary proceeding = $474,904.11. · Total interest payable - $812,961.50. Final orders 5 The Court therefore orders that: 1. The first respondent pay the second respondent the sum of $1,762,224.33 as damages in respect of the second respondent's cross‑claim against the first respondent. 2. The first respondent pay the second respondent the sum of $812,961.50 as interest on the costs incurred by the second respondent including the amount in order 1 of these orders. 3. The first respondent pay the second respondent's costs of the assessment of damages in respect of the second respondent's cross‑claim against the first respondent. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 24 June 2010