FEDERAL COURT OF AUSTRALIA
The University of Western Australia v Gray (No 13) [2007] FCA 397
Federal Court of Australia Act 1976 (Cth) s 23
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) s 7
University of Western Australia v Gray (No 8) [2006] FCA 1825 cited
University of Western Australia v Gray (No 11) [2007] FCA 377 cited
THE UNIVERSITY OF WESTERN AUSTRALIA v BRUCE NATHANIAL GRAY, SIRTEX MEDICAL LIMITED (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 v THE UNIVERSITY OF WESTERN AUSTRALIA
SIRTEX MEDICAL LIMITED v BRUCE NATHANIAL GRAY and CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)
WAD292 OF 2004
FRENCH J
20 MARCH 2007
PERTH
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
WAD292 OF 2004 |
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BETWEEN: |
UNIVERSITY OF WESTERN AUSTRALIA Applicant
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AND: |
BRUCE NATHANIEL GRAY First Respondent
SIRTEX MEDICAL LIMITED Second Respondent
CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005) Third Respondent
BRUCE NATHANIEL GRAY First Cross-Claimant
UNIVERSITY OF WESTERN AUSTRALIA First Cross-Respondent to First Cross-Claim
YAN CHEN Second Cross-Respondent To First Cross Claim
SIRTEX MEDICAL LIMITED (ACN 078 166 122) Second Cross-Claimant
UNIVERSITY OF WESTERN AUSTRALIA Cross-Respondent to Second Cross-Claim
SIRTEX MEDICAL LIMITED (ACN 078 166 122) Third Cross-Claimant
BRUCE NATHANIEL GRAY First Cross-Respondent to Third Cross-Claim
CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005) Second Cross Respondent to Third Cross-Claim
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FRENCH J |
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DATE OF ORDER: |
20 MARCH 2007 |
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WHERE MADE: |
PERTH |
THE COURT ORDERS THAT:
1. The first respondent’s amended notice of motion filed 12 March 2007 is dismissed.
2. The first respondent is to pay the applicant’s and the third respondent’s costs of the motion.
3. The second respondent’s motion filed 12 March 2007 is dismissed.
4. The second respondent is to pay the applicant’s and the third respondent’s costs of the motion.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
WAD 292 OF 2004 |
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BETWEEN: |
THE UNIVERSITY OF WESTERN AUSTRALIA Applicant
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AND: |
BRUCE NATHANIAL GRAY First Respondent
SIRTEX MEDICAL LIMITED (ACN 078 166 122) Second Respondent
CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005) Third Respondent
BRUCE NATHANIAL GRAY First Cross-Claimant
UNIVERSITY OF WESTERN AUSTRALIA First Cross Respondent to First Cross-Claim
YAN CHEN Second Cross-Respondent to First Cross-Claim
SIRTEX MEDICAL LIMITED (ACN 078 166 122) Second Cross-Claimant
UNIVERSITY OF WESTERN AUSTRALIA Cross-Respondent to Second Cross-Claim
SIRTEX MEDICAL LIMITED (ACN 078 166 122) Third Cross-Claimant
BRUCE NATHANIEL GRAY First Cross-Respondent to Third Cross Claim
CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005) Second Cross-Respondent to Third Cross-Claim
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JUDGE: |
FRENCH J |
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DATE: |
20 MARCH 2007 |
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PLACE: |
PERTH |
REASONS FOR JUDGMENT ON MOTIONS TO RESTRAIN DISPOSAL
OF ASSETS BY THIRD RESPONDENT PURSUANT TO SETTLEMENT AGREEMENT WITH SECOND RESPONDENT
Introduction
1 Two of the respondents to these proceedings, namely Dr Bruce Gray and Sirtex Medical Limited (Sirtex) have filed motions seeking to restrain the implementation of terms of settlement agreed between the University of Western Australia (the University) and the third respondent, Cancer Research Institute Incorporated (CRI). Under the terms of the settlement CRI will transfer to a charitable trust to be established pursuant to the settlement, the contested shares in Sirtex which are presently its only substantial asset. Those shares are the subject of a claim by the University that they are impressed with a constructive trust in its favour having been acquired by CRI in consideration of the assignment to Sirtex of intellectual property rights which were, in truth, the property of the University. Sirtex has a cross-claim against CRI and seeks to restrain implementation of the terms of settlement so that the CRI asset remains intact and available for the satisfaction of any judgment that Sirtex may obtain against CRI. Dr Gray, who is also the subject of a cross-claim by Sirtex, is concerned that he may have to bear the full burden of a judgment under the cross-claim in the event that CRI disposes of its assets. The trial of the action commenced on 15 March 2007 and is continuing.
2 For the reasons that follow, I am not satisfied that I should grant the interlocutory relief which is sought by Dr Gray and Sirtex. Their motions will be dismissed with costs.
Factual and procedural background
3 In these proceedings the University sues a former Professor of Medicine and Head of the Department of Surgery at the University, Dr Bruce Gray, and two organisations with which he is associated. It sues a listed public company, Sirtex, which holds intellectual property rights to which the University says it is entitled. It also sues CRI which acquired intellectual property rights in the DOX-Sphere invention from Dr Gray. CRI subsequently assigned those intellectual property rights to Sirtex. It now holds shares and options in the publicly listed company. The University claims a declaration against CRI that it holds, on trust for the University, such of the shares and options in Sirtex as are found by the Court to be impressed with the trust. It also seeks an order that CRI transfer the shares and options to the University. On 2 June 2006 I made an order that CRI be restrained until further order from dealing in any shares held by it in Sirtex and from exercising any options held by it in relation to that company.
4 On 31 July 2006, following a mediation conference, the University and CRI resolved their dispute on the basis that CRI transfer the Sirtex shares held by it into a trust to be called the Cancer Research Trust. Instructions were given to an independent solicitor to prepare documentation necessary to give effect to the settlement agreement. However, on 19 September 2006, at a directions hearing the Court was informed by counsel representing CRI that a question had arisen about the legal capacity of its Board from whom he had been receiving instructions. Since then a new Board was purportedly appointed by resolution of a meeting of CRI held on 27 September 2006. The new Board comprised Dr Gray, Mr David Sanders, who is a partner in the law firm Lavan Legal representing him, and Dr Gray’s sister, Ms Bethwyn Daebritz. The development gave rise to concerns which I expressed about the extent to which the affairs of CRI in the litigation might be conducted in the pursuit of interests other than those related to its objects which are public charitable purposes and, in particular, purposes related to cancer research and education.
5 On 29 September 2006 the University filed a motion seeking enforcement of the agreement. On 3 October 2006 on the return of that motion I raised the possibility that because of the governance difficulties affecting CRI it might be necessary to consider the appointment of a receiver. On 5 October 2006 I appointed Mr Mark Conlan as the receiver of the shares in Sirtex held by CRI with power to exercise all of CRI’s rights as a shareholder in Sirtex. He was authorised to investigate the enforceability of the agreement said to have been made with the University. I also required that a meeting of CRI be convened by him and that he would have all the powers of the Board and a member of CRI for that purpose in order to enable the meeting to consider and determine whether the agreement which had been made should be ratified or whether some alternative course should be taken.
6 Because of difficulties that arose in ascertaining the identity of the membership of CRI, the matter came back to Court on 27 November 2006 with the receiver seeking an expansion of his powers. For reasons published on 22 December 2006 I made orders expanding the powers of the receiver in the following terms (inter alia):
3. Without limiting the other powers conferred on the receiver by these orders, the receiver have the power to:
(a) determine the position that the third respondent should take in these proceedings;
(b) have the conduct of these proceedings on behalf of the third respondent;
(c) instruct solicitors to appear and to file and serve any documents in the proceedings; and
(d) subject to the approval of the Court, enter into and give effect to any agreement for the resolution of all or part of these proceedings so far as they affect the third respondent.
4. For the purposes of orders 2 and 3 of these orders the receiver have all of the rights and powers:
(a) of a member of the third respondent;
(b) of the third respondent as a shareholder in the second respondent;
(c) of the board of management of the third respondent including, without limitation, the power to manage any and all of the assets and undertakings of the third respondent in such manner as he considers appropriate, consistent with the objectives of the third respondent, and for the purposes of the conduct or resolution of these proceedings;
(d) as may be reasonably incidental to the pursuit of any of those purposes or the exercise of any of the powers conferred by these orders.
5. In order to enable him properly to discharge his functions and exercise his powers under these orders, the receiver may obtain independent commercial and legal advice as he deems appropriate, including without limitation the advice of senior counsel.
6. The receiver is not required to file security pursuant to Order 26 Rule 3.
See: University of Western Australia v Gray(No 8) (2006] FCA 1825
7 Subsequently the University and CRI by its receivers, entered into a further settlement agreement on 22 February 2007 (the Terms of Settlement). It provided for the creation of a new charitable trust in essentially the same terms as had been contemplated by the agreement made on 31 July 2006. It also provided:
3. CRI and UWA instruct Mrs Elizabeth Heenan to prepare the documents required to constitute the Trust in accordance with the following principles:
(a) the Trust be a charitable trust;
(b) the primary objects of the Trust are to be:
(i) to support and promote cancer research and education, including without limitation funding cancer research and education at a state, national and international level; and
(ii) to establish, maintain and administer a public fund or funds for any charitable purposes it may decide in relation to cancer research and education.
(c) the Trust be managed by a Board of Management initially comprising:
(i) a chairman appointed by UWA, CRI and the WA Institute for Medical Research (“WAIMR”) jointly;
(ii) two nominees proposed by WAIMR;
(iii) one nominee appointed by CRI;
(iv) one nominee appointed UWA,
with the intention that all persons to be appointed to the Board of Management be acceptable to each of UWA, CRI and WAIMR. The University and WAIMR acknowledge that CRI may propose as its nominee a representative of the Walter & Eliza Hall Institute of Medical Research (“WEHI”) and the University and WAIMR agree that they will have no objection to a representative of WEHI being appointed to the Board provided the nominee is otherwise appropriately qualified;
(d) an external national/international scientific committee (“the scientific committee”) be appointed by the Board of Management to advise and assist the Board of Management and to oversee and facilitate the peer review process;
(e) the Trust deed will include provisions the purpose of which is to ensure that the Board of Management/the scientific committee observe proper corporate governance principles including those that relate to conflicts of interest in assessing and determining the best method of achieving the Trust’s objects and it is specifically agreed that the Trust deed will incorporate: (a) provisions for the utilisation of an international peer review process for the assessment and allocation of grants from the Trust; and b) all research conducted pursuant to grants from the Trust shall be conducted in accordance with the Joint NHMRC/AVCC Statement and Guidelines on Research Practice (1997) or such other guidelines as may replace those guidelines;
(f) WAIMR provide administrative support (to be audited annually) to the trust;
(g) The Trust deed will include provisions for the establishment of a nominations committee to call for and examine suitable appointees to the Board of Management to replace retiring Board members from time to time;
(h) Any disputes between the parties as to the terms of the Trust deed will be resolved by Mrs Heenan having regard to the objects of the Trust, the terms of this document and considerations of fairness and equity. Mrs Heenan must give the parties the opportunity to make representations to her in such manner as she may in her absolute discretion think fit. Mrs Heenan will act as an expert and her decision will be final and binding.
4. Upon the constitution of the Trust and the appointment of its inaugural Board of Management, CRI shall transfer to the Trust all of its assets.
…
6. The Trust will pay any taxation liabilities including stamp duty that may arise in consequence of the transfer of assets referred to in paragraph 4 above, out of those assets.
7. Subject to being empowered by the Federal Court to do so the Receiver of CRI will take all such steps as are necessary to wind up its activities and to be deregistered as an incorporated association.
…
10. CRI and UWA to execute a consent order in the proceedings numbered WAD 292 of 2004 in the Federal Court of Australia providing for the dismissal of UWA’s claim against CRI on the basis that no order as to costs is made and that existing orders for costs, if any, be discharged as between CRI and UWA.
8 In accordance with the orders made on 22 December 2006 it was necessary for the University and CRI to seek approval of the settlement agreement. Because that approval process did involve some reference to what occurred in mediation and was opposed by Sirtex, the application for approval was referred to another judge, Graham J.
9 On 8 March 2007 Graham J made the following orders:
1. Orders that the agreement for resolution of the applicant’s claims for relief against the third respondent as contained in the ‘Agreed Settlement Terms’ of 22 February 2007 as varied on 2 March 2007 be approved.
2. Directs that this order not be entered before 2:15pm WDST on Friday 9 March 2007.
3. Orders that the second respondent pay 50% of the third respondent’s costs of the Notice of Motion dated 28 February 2007.
4. Orders that the second respondent pay 50% of the applicant’s costs of the Notice of Motion dated 28 February 2007.
5. Orders that the costs the subject of the earlier orders may be taxed and shall be payable forthwith.
University of Western Australia v Gray (No 11) [2007] FCA 377
10 Since those orders were made Sirtex and Dr Gray have filed motions seeking orders which would restrain CRI and its receiver until further order from taking steps to dispose of the shares pursuant to the Terms of Settlement. I directed that the parties file affidavit evidence and written submissions in relation to the motions and reserved judgment on them until today.
The Sirtex motion
11 By its motion filed on 12 March 2007 Sirtex seeks the following orders:
1. The Third Respondent and Mr Mark Conlan, the receiver of the Third Respondent (“the Receiver”), be restrained, until further order, from taking the steps in paragraphs 4, 6 and 7 of the Terms of Settlement dated 22 February 2007 and amended 2 March 2007;
2. Subject to orders 7 to 12 of the orders of the Honourable Justice French made 22 December 2006, the Third Respondent and the Receiver be restrained, until further order, from dealing (whether by transfer, alienation, encumbrance or pursuant to the Terms of Settlement dated 22 February 2007 and amended 2 March 2007 or otherwise) in any shares held by it (whether beneficially or otherwise) in the Second Respondent.
3. There be liberty to apply to vary or discharge the above orders at short notice.
4. Such further or other orders as the Court may consider appropriate.
Whether the orders sought by Sirtex should be made
12 Sirtex submits, in support of its motion, that pursuant to the Terms of Settlement, CRI intends to transfer its Sirtex shares to the Cancer Research Trust. CRI however remains a cross-respondent to a cross-claim brought by Sirtex. The shares which CRI holds are said to be its only asset of substantial value. If they were to be transferred CRI would be unable to satisfy any judgment that Sirtex may obtain against it in the cross-claim. It is submitted that there is a serious question to be tried between Sirtex and CRI and that the balance of convenience favours the grant of the injunctive relief which Sirtex seeks.
13 The serious question to be tried is identified by reference to Sirtex’s cross-claim against CRI. Sirtex claims against CRI loss and damage suffered by it in the event that CRI has breached certain warranties and has made misleading representations to Sirtex. These breaches would be established if there were to be a finding by the Court that the University is beneficially entitled to intellectual property acquired by Sirtex from CRI. Sirtex denies that the University is so entitled and the cross-claim, insofar as it seeks what amounts to an indemnity against CRI, depends upon the success of the University case against Sirtex. The Court has already observed in relation to the University’s application for a freezing order in respect of CRI’s shares in Sirtex, that there is a serious question to be tried between the University and CRI. Consistently with that finding there is a serious question to be tried between Sirtex and CRI on the contingent or indemnity aspect of the cross-claim.
14 There is a question as to the utility of such relief. If the University is completely successful in its action against Sirtex then all of Sirtex’s interest in the disputed intellectual property rights will be impressed with a constructive trust in favour of the University. The value of the shares held by CRI in that event is likely to be much diminished as, indeed, is the value of shares held by Dr Gray. In one sense the stronger the University case against Sirtex, the less useful is the pursuit of its cross-claim against CRI. To the extent that Dr Gray’s wealth is represented by his Sirtex shareholding, that may also hold true for the Sirtex cross-claim against him.
15 The balance of convenience in favour of Sirtex, calculated on the hypothesis of a completely successful result for the University against Sirtex, is subject to an unquantified but significant discount in relation to the contingent or indemnity aspect of its cross-claim against CRI.
16 There may be another outcome in which the University succeeds in respect of some but not all of the intellectual property rights held by Sirtex. In that event, the consequence may be a lesser diminution in the value of Sirtex shares reflecting their diminished capital base. No submission has been advanced on that hypothesis and no quantifiable outcome has been suggested. I am left unable to draw inferences about the risks faced by Sirtex based on the hypothesis of a partial University success. On the other hand, there is no material before me to indicate substantial loss or inconvenience suffered by either the University or CRI in the event that the implementation of the Terms of Settlement is delayed pending the outcome of these proceedings. It is relevant in this context to consider the detriment to the public interest served by the objectives of CRI and which it seems would continue to be served by the proposed Trust. There is evidence about the variability of Sirtex share prices but not such as to indicate that it is more likely to go down than up or to remain stable. It is put however, that a freezing order would prevent prudential management of the asset.
17 Sirtex has pleaded a cross-claim against CRI at [196A] of its defence and cross-claim that does not depend upon the success or failure of the University claim against it. As is pointed out by the University in its submission, the strength of the Sirtex case in relation to that aspect of the cross-claim is not established by evidence. The cross-claim is based upon the alleged breach by CRI of warranties or the making of misleading representations to the effect that no third party had a claim upon the intellectual property rights acquired by Sirtex from it. This plea does not depend upon the success of the claim brought by the University against Sirtex but rather the fact of its existence. If the University were to succeed completely against Sirtex, Sirtex’s cross-claim against CRI would not depend upon [196A]. If the University were to fail against Sirtex but the fact of its claim were to support the cross-claim based on [196A], then the quantum of that claim would be related to the transaction costs associated with these proceedings. There is no quantum of the loss suffered in such event to measure against the total value of the CRI shareholding which would be affected by an injunction. On the other hand, if the University were to fail against Sirtex and Sirtex’s cross-claim against CRI based on [196A] were to succeed, then there would be no judgment by the University against Sirtex to affect the value of the Sirtex shares held by CRI. In that event the shares might constitute an asset capable of satisfying a judgment against CRI on Sirtex’s cross-claim.
18 The preceding considerations apart, the University and CRI point to conduct of Sirtex which is said to have the effect that it is estopped from pursuing interlocutory relief or has waived its entitlement to do so. Alternatively, the conduct of Sirtex is said to be a factor to be weighed in the balance as a matter of discretion against the grant of this interlocutory relief.
19 The conduct relied upon begins with a statement by counsel for Sirtex in Court on 5 October 2006 when the appointment of the receivers to CRI was made. Counsel said to the Court:
My instruction are that if CRI settles – or which, in fact, it has settled - with UWA, then the only reason that it may be a party to the proceedings is because of the potential cross-claims. My instructions are that Sirtex shall either withdraw the application for … to cross-claim, or, alternatively, the cross-claims on foot will discontinue that and will not seek to have any claim it may have against CRI agitated in this proceeding - of course, reserving all its rights.
20 On 10 October 2006 the solicitors for Sirtex sent a letter to the solicitors for CRI in the following terms:
I am sending this letter to you in your capacity as the solicitor on the record for CRI. I confirm that you do not act for the Receiver.
During argument before French J on 5 October 2006, Mr Elliott SC informed the Court of his instructions in respect of the proposed cross-claim against CRI. I formally record those instructions in this letter as follows:
1 If CRI settles with UWA (or it is determined that CRI has settled with UWA), Sirtex will:
1.1 withdraw its application for leave to file a cross-claim against CRI in these proceedings; or
1.2 seek leave to discontinue any cross-claim which has been filed and served.
2 If the events in paragraph 1 above occur, Sirtex will not object to the current freezing orders against the shares of CRI being lifted or varied to permit any settlement to occur.
3 Sirtex otherwise reserves all of its rights against CRI and the above position should not be regarded as any concession in that regard.
Sirtex will rely upon this letter in any argument on costs in respect of the withdrawal of the application or the discontinuance of any cross-claim.
21 The receiver for CRI, Mr Conlan, sent a letter to the solicitors for Sirtex on 11 October 2006 acknowledging receipt of a copy of their letter of 10 October 2006 and stating that:
The contents of your correspondence to Mr Tottle is noted and will be considered during the course of the performance of my duties as receiver.
22 At a further directions hearing on 26 October 2006 counsel for Sirtex said to the Court:
… the position is that if an agreement is reached between UWA and CRI, then we will withdraw or discontinue, whichever is the appropriate, that cross-claim, of course reserving all our rights.
Sirtex was given leave to amend its defence and cross-claim on 26 October 2006. At that time it added CRI as a party to its cross-claim.
23 Ms Fang, a solicitor for CRI, sent an email to Mr Price, a solicitor for Sirtex, seeking clarification of Sirtex’s position on its cross-claim against CRI on 27 October 2006. On the same day Mr Price replied to Ms Fang’s email and said that Sirtex’s position remained as set out in their recent letter and as stated to the Court on 26 October 2006.
24 CRI submits that the statements to the Court, the Phillips Fox letter dated 10 October 2006 and Mr Price’s email led CRI’s solicitors to believe that if CRI settled with the University Sirtex would withdraw or discontinue its cross-claim. Sirtex did not, according to CRI, subsequently take any steps to pursue its cross-claim against CRI pending the question of a possible settlement between the University and CRI.
25 In an affidavit sworn by Ms Faulkner, a solicitor for the University, on 13 March 2007 she stated that on 8 December 2006 she conferred with Mr Heitman of the University with respect to the University’s motion for enforcement of its first settlement agreement and CRI’s participation in the proceedings on a defended basis. She said she was informed by Mr Heitman and believes that if she had advised him on 8 December 2006 or at any time prior to the mediation that took place on 22 February 2007, or indeed at any other time, that Sirtex wished to prosecute its cross-claim against CRI then he would have instructed her:
(a) not to pursue further settlement discussions with the Receiver on behalf of CRI upon the Receiver’s powers being extended;
(b) to seek orders to enable the participation of CRI in the proceedings on a defended basis;
(c) to continue seeking to recover from CRI the shares claimed by the University rather than compromising the proceedings in the course of the Mediation Conference; and
(d) in conjunction with other discussions that had been undertaken with Sirtex since about late September 2006 (which are privileged and for which no waiver is given by the Applicant), to also undertake discussions with Sirtex with respect to the disposition of its cross-claim against CRI to the extent that such had implications for the University …
26 Sirtex says that it did not approve, nor was it consulted, in relation to the Terms of Settlement. It refers to a letter dated 22 February 2007 from Mr Tottle on behalf of the Receiver which forwarded a copy of the Terms of Settlement. The letter said, inter alia:
At the directions hearing on 23 February 2007, the receiver will be seeking the Court’s approval of the Settlement, in accordance with the order made by French J on 22 December 2006.
Can you please kindly confirm that upon the Court’s approval of the Settlement the second respondent’s cross-claim against the third respondent will be discontinued with no order as to costs.
Sirtex says no such approval was ever forthcoming. It opposed the approval of the second agreement when the matter came before Graham J.
27 Sirtex submits that in the statements made by its counsel on 5 October 2006 and 26 October 2006 the only matter represented was that, in the event of a settlement between the University and CRI, Sirtex would not prosecute a cross-claim against CRI in these proceedings. Those statements were followed by an express reservation of all rights. As such, it is submitted:
i. There was no unambiguous, clear and unequivocal representation that a cross-claim would not be prosecuted. Absent such a representation, no estoppel can arise…
ii. There was no representation at all that a claim against CRI would not be prosecuted in separate proceedings (indeed, on 5 October Counsel for Sirtex stated that Sirtex would not seek to have its claims against CRI “agitated in this proceeding”).
iii. There was no representation at all that injunctive relief would not be sought in order to prevent the dissipation of assets if UWA maintained (and ultimately succeeded) in its claim against Sirtex in relation to the CRI related matters raised in the Statement of Claim.
28 Referring to the letter of 10 October 2006, it is said that two matters were represented:
i. First, that, in the event of a settlement between UWA and CRI, no cross-claim would be prosecuted in these proceedings. Again, however, that statement was qualified by an express reservation of all rights. As such, the position in this respect is the same as with respect to the statements made in Court described above.
ii. Secondly, that in the event of a settlement between UWA and CRI, Sirtex would not object to the lifting of the freezing orders in favour of UWA “to permit any settlement to occur”. However:
(1) That representation was again qualified by an express reservation of all rights, and thus is not a sufficiently unambiguous, clear and unequivocal statement to found an estoppel.
(2) In any event, the representation at its highest only stated that Sirtex would not object to the lifting of the freezing order in favour of UWA in order to permit the implementation of the settlement. Sirtex did not represent:
a. that it would not seek to obtain its own freezing order in appropriate circumstances; or
b. that it would not object to any such settlement, or any step (other than object to the lifting of the existing freezing order) that may have the effect of preventing the implementation of any agreement reached.
(3) It may thus be seen that the various statements made on behalf of Sirtex did not induce the assumptions said to found the alleged estoppel.
29 Sirtex goes on to submit that neither the University nor CRI can demonstrate that it has acted in reliance on the assumptions posited. The similarity between the terms of settlement and those reflected in the first agreement between the University and CRI in July 2006 are pointed to. Moreover, the letter of 10 October 2006 was sent only to CRI and the receiver. There is no evidence to suggest that the University received or knew about or relied on the contents of the 10 October 2006 letter. Further, it says, there is no evidence that either the University or CRI relied in any way on the letter of 10 October 2006.
30 It is unnecessary to determine whether the conduct of Sirtex gives rise to an estoppel or constitutes a waiver of its rights. It is not necessary to identify precise assumptions which may be pleaded out of its representations in order to infer that the University and CRI were influenced in arriving at their Terms of Settlement by the representations made by Sirtex at the hearing on 5 October 2006 and subsequently. Sirtex seems to be engaged here in an exercise of fine distinction to enable it to resile from a position it previously adopted and which it does not now wish to maintain. The grant of the freezing orders which it seeks against CRI is a significant step and not one lightly to be undertaken. The question whether such relief should be granted involves the exercise of a discretion pursuant to the statutory power conferred on the Court by s 23 of the Federal Court of Australia Act 1976 (Cth). Sirtex’s conduct in the representations it made by counsel and in its correspondence, weigh against the grant of the relief sought. For the reasons already discussed, while the balance of convenience is in Sirtex’s favour, absent consideration of its representations, it is of somewhat uncertain extent. Sirtex’s motion will be dismissed with costs.
Dr Gray’s motion
31 By an amended notice of motion filed on 12 March 2007, the first respondent, Dr Gray, seeks orders:
1. Upon the usual undertakings as to damages, order that:
(a) The Third Respondent and Mr Mark Conlan, the receiver of the Third Respondent (the Receiver) be restrained, until further order, from dealing (whether by transfer, alienation, encumbrance, or otherwise) in any shares held by it or him as Receiver (whether beneficially or otherwise) in the Second Respondent, further or alternatively from taking the steps in paragraphs 4, 6 and 7 of the Terms of settlement dated 22 February 2007 and amended 2 March 2007;
(b) The Third Respondent and the Receiver be restrained, until further order, from exercising any options held by it or him as Receiver (whether beneficially or otherwise) (if any) in relation to the Second Respondent.
2 Further and other orders.
3 Costs
Whether the first respondent’s freezing order should be granted
32 In an affidavit in support of his amended notice of motion, Dr Gray says he is a long standing member of CRI and claims to be its current chairman. From his understanding of CRI and its financial affairs he is aware that its only substantial asset is its shareholding in Sirtex. To dispose of that shareholding it will have no assets of any significance to satisfy any judgment against it.
33 By way of submission it is said, on behalf of Dr Gray, that under [196A] of the Sirtex cross-claim against himself and CRI, Sirtex seeks relief regardless of the outcome of the University’s claims against it. Dr Gray submits that in the event that the cross-claim is pursued a serious question will arise as to whether or not he and CRI are liable at the suit of Sirtex. He says it is obvious that this is a serious question because Sirtex’s liability and loss is said to arise from taking assignments of inventions and patents from himself and CRI as alleged in the pleadings. In the event that CRI is permitted to divest its assets to the new Trust, it will have no capacity to satisfy any judgment against it. His concern appears to be that he will then bear the full burden of any judgment on the cross-claim in favour of Sirtex.
34 CRI in its submissions answers Dr Gray’s contention by pointing out that an analysis of the Sirtex cross-claim discloses that Dr Gray and CRI are not alleged to be liable as joint tortfeasors. With the limited exception of an alleged liability for legal costs, they are not liable in tort for the same damage. Nor are they alleged to have any concurrent liability in contract for the same damage. The representations and warranties upon which the cross-claims against them depend are found in different contracts that deal with different subject matters subject to a limited overlap that is of no consequence. They provide for different considerations and contain different warranties and representations which give rise to different loss and damage. An analysis of the cross-claims is set out in the written submissions. Without traversing the detail of that analysis I accept the substance of it and that CRI has made out a detailed case adverse to the submissions put on behalf of Dr Gray.
35 CRI points out that the warranties and representations alleged against it are confined to the technology acquired from it, namely the DOX-Spheres technology and relevant patents. Intellectual property said to have been acquired from Dr Gray by Sirtex also included DOX-Spheres as part of a much more extensive suite of intellectual property which he transferred. It is submitted that any damage suffered by Sirtex of the nature pleaded in [200(g)] of its cross-claim must be related to DOX-Spheres technology before CRI can be found liable for it. CRI has no liability in respect of development work and the like undertaken in respect of other intellectual property allegedly acquired from Dr Gray. The loss claimed to have been suffered as a result of the alleged misleading and deceptive conduct by Dr Gray and CRI comprise a number of losses that cannot be said to amount to “the same damage”. The value of the consideration paid to each of them under the deeds which they entered into with Sirtex are clearly not “the same damage”. The value of the consideration was different in each case.
36 Sirtex’s alleged expenditure on the development and protection of the inventions which it acquired is an aggregate claim for different damage incurred in respect of several and different classes of inventions.
37 CRI also submits that the sole basis for the freezing order sought by Dr Gray in the submissions filed on his behalf, is that if an order is not made CRI will have no capacity to satisfy any judgment that might be given in favour of Sirtex. CRI submits that relief should not be granted on this basis on the application of Dr Gray for the following reasons:
(a) Dr Gray does not articulate any justiciable cause of action against CRI.
(b) Neither principle nor authority supports the proposition that the fact that Dr Gray and CRI are respondents to a cross claim give standing to Dr Gray to apply for a freezing order.
(c) The proposition implicitly assumes that Dr Gray and CRI are each liable for the same damage and that their liabilities will be co-extensive when … this is not the case.
(d) The proposition assumes, in the absence of any evidence, that any potential liability on the cross claim will equal or exceed the value of CRI’s assets.
38 CRI submits that there can be no contribution claim by Dr Gray under s 7 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) in respect of the misleading and deceptive conduct causes of action raised by Sirtex. That is put on the basis that such a claim can only be made if CRI and Dr Gray are liable for “the same damage”. The only loss claimed by Sirtex in [200] of its defence and cross-claim for which CRI and Dr Gray may both be liable that is capable of constituting the “same damage” is costs claimed in subpars (c) and (d). Moreover, for the purposes of establishing a good arguable case, it is not sufficient to point to the possibility of a contribution claim. The applicant must adduce some evidence that assists the Court in determining what contribution is just and equitable. No such evidence has been adduced by Dr Gray.
39 The submissions on behalf of CRI also refer to the Sirtex share price which has fluctuated considerably from $2.10 in June 2006 to about $3.30 at present. This appears from a share price chart exhibited to Ms Fang’s affidavit of 15 March 2007. While the share price may go up, as counsel for CRI points out, it may also go down especially if Sirtex is found to be liable to the University. It is put that freezing CRI shareholding in Sirtex will prevent prudential management of its assets in a manner that would hedge against adverse fluctuations in the price.
40 I accept the substance of the submissions put by CRI. I do not consider that the sparseevidence and the argument advanced on behalf of Dr Gray support the injunctive relief which he seeks. His motion will be dismissed with costs.
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I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. |
Associate:
Dated: 20 March 2007
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Mr T Tobin QC and Mr M Green |
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Solicitor for the Applicant: |
Jackson McDonald |
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Counsel for the First Respondent: |
Mr M Bennett and Mr IR Freeman |
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Solicitor for the First Respondent:
Counsel for the Second Respondent:
Solicitor for the Second Respondent:
Counsel for the Third Respondent:
Solicitor for the Third Respondent: |
Lavan Legal
Mr JD Elliott SC and Mr EJC Heerey
DLA Phillips Fox
Mr P Tottle
Tottle Partners |
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Date of Last Written Submissions:
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16 March 2007 |
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Date of Judgment: |
