Case: Victoria University of Technology v Wilson (2004) 60 IPR 392
Outcome: cited
The tender was supported by Sirtex Medical Limited (Sirtex) which referred to observations made by Nettle J in Victoria University of Technology v Wilson (2004) 60 IPR 392 that (at [210]): ... a fiduciary's position only inhibits him or her in respect of business opportunities that the principal is actively pursuing or in which the principal might reasonably be expected to be interested. As Professor Glover put it in the first edition of his work on commercial equity: "characterisation of an opportunity as a fiduciary opportunity overlaps with the characterisation of whether the scope of fiduciary duties extends to the opportunity in question". 7 Objection was taken to the tender by the University on the basis that Dr Gray was seeking to put in evidence of a tendency on the part of the University to act in a particular way or to have a particular state of mind in relation to the commercialisation of inventions. This was evidence which, it was said, was covered by s 97 of the Evidence Act 1995 (Cth). Evidence covered by that section which defines "the tendency rule" is admissible only upon prior reasonable notice in writing to the other parties. Moreover it is not admissible if the Court considers that it would not, either by itself or having regard to other evidence, have significant probative value. The notice requirement can be waived by the Court under s 100(1). Also relevant for present purposes are the provisions of s 135 of the Evidence Act which provide: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. 8 I have perused the documents contained in the two folders. They relate to the resolution of a particular dispute about the ownership of intellectual property and do not appear on the face of them to support general inferences about the tendency or capacity of the University at the relevant time in relation to the commercialisation of intellectual property. They potentially open up a wide field of inquiry about the basis upon which the settlement reached in the case to which they relate turned upon an assessment of the strengths and weaknesses of the University's case or more general considerations. To the extent that the documents go to tendency in the sense covered by s 97 , I do not consider that they have significant probative value in the present case. To the extent that they are said to go to capacity, I consider that their probative value is substantially outweighed by the danger that they might cause or result in undue waste of time. 9 The tender of the documents will be refused. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 31 May 2007 Counsel for the Applicant: Mr T Tobin QC, Mr M Green and Mr D Pratt Solicitor for the Applicant: Jackson McDonald Counsel for the First Respondent: Mr M Bennett and Mr I Freeman Solicitor for the First Respondent: Lavan Legal Counsel for the Second Respondent: Solicitor for the Second Respondent: Mr JD Elliott SC, Mr EJC Heerey and Mr J Emmett DLA Phillips Fox Date of Hearing: 29 May 2007 Date of Judgment: 31 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/843.html