Background
Janssen-Cilag Pty Ltd and Actelion Pharmaceuticals Ltd brought three patent-infringement proceedings concerning macitentan products used to treat pulmonary arterial hypertension. The respondents were Arrotex Pharmaceuticals Pty Ltd, Nova Pharmaceuticals Australasia Pty Ltd and MSN Laboratories Australia Pty Ltd. An interlocutory-injunction hearing was listed for 19 November 2026.
Cipla Australia Pty Ltd and Seekwell Pty Ltd, which proposed to launch and distribute another macitentan product but had not been sued, obtained leave to appear to seek suppression orders over confidential material the applicants intended to rely on. Their application would have prevented the respondents and their external lawyers from seeing the material, including draft undertakings said to address whether Cipla’s and Seekwell’s proposed launch would infringe a patent.
The Court’s Holding
Justice Jackman ordered Cipla and Seekwell to pay the applicants’ and respondents’ costs of their 21 October 2026 interlocutory application, immediately after agreement or lump-sum assessment. If no amount was agreed by 27 November 2026, the costs were to be referred to a Registrar for lump-sum determination.
The Court found that Cipla and Seekwell had acted unreasonably by commencing and pursuing an application in terms that would have denied even the respondents’ external lawyers access to material apparently relevant to the balance of convenience. They withdrew that position only after difficulties in it were exposed during oral argument and the Court required them to choose between determination on the inadequate evidence then available and giving the respondents’ lawyers access.
Key Takeaways
- Non-parties seeking confidentiality protections can be ordered to pay costs of their own unsuccessful interlocutory application.
- Confidentiality orders cannot unreasonably prevent opposing parties’ lawyers from reviewing material relevant to an interlocutory dispute.
- An agreed resolution does not necessarily justify each side bearing its own costs where one party acted unreasonably.
Why It Matters
The decision underscores that suppression and confidentiality applications must be narrowly justified, particularly where they restrict access to evidence relevant to an imminent injunction hearing. Parties and non-parties seeking exceptional protections should support them with adequate evidence and adopt proportionate terms.