Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd (No 3) [2021] FCA 1428

Federal Court of Australia

Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd (No 3) [2021] FCA 1428 File number: NSD 2149 of 2016

Judgment of: BURLEY J

Date of judgment: 18 November 2021

Catchwords: PRACTICE AND PROCEDURE – application for preliminary discovery pursuant to r 7.23 of the Federal Court Rules 2011 (Cth) ('FCR') – where prospective applicants previously satisfied the Court that it reasonably believed it may have a right to relief from the prospective respondent with respect to patent infringement – documents produced – where prospective applicants seek production of further documents – whether requirements of FCR 7.23(1)(a)-(c) are met – "sufficient" information – "control" of documents – prospective respondent to give preliminary discovery of documents falling within revised requests PRACTICE AND PROCEDURE – continuing discovery – whether FCR 20.20 imposes on a prospective respondent ordered to give preliminary discovery an obligation of continuing discovery – no obligation of continuing discovery PRACTICE AND PROCEDURE – Sabre-style orders – where prospective respondent provided assurance that it was not in control of certain documents sought – where evidence suggested that relevant documents may be held by several third parties

Legislation: Evidence Act 1995 (Cth) s 75 Federal Court of Australia Act 1976 (Cth) s 23 Therapeutic Goods Act 1989 (Cth) ss 25, 28 and 31 Federal Court Rules 1979 (Cth) O 15A r 6(b) Federal Court Rules 2011 (Cth) rr 1.32, 7.21, 7.23(1)(a), 7.23(1)(b), 7.23(1)(c)(i), 7.23(1)(c)(ii), 7.23(2), 7.25, 20.13(3), 20.16, 20.17, 20.20, 20.23, 20.22 and Schedule 1