FEDERAL COURT OF AUSTRALIA

University of Western Australia v Gray (No 17) [2007] FCA 924

PRACTICE AND PROCEDURE -  pleadings – lengthy trial – amended defences filed – leave to file amended replies – replies filed substantially later in time and exceeding responses to amended defences – whether additional amendments should be allowed – considerations of fairness, prejudice and case management – amendments allowed in part

Limitation Act 1935 (WA) s 47

THE UNIVERSITY OF WESTERN AUSTRALIA v BRUCE NATHANIEL GRAY, SIRTEX MEDICAL LIMITED, CANCER RESEARCH INSTITUTE INCORPORATED (REG NO 1001005), BRUCE NATHANIEL GRAY, THE UNIVERSITY OF WESTERN AUSTRALIA, YAN CHEN, SIRTEX MEDICAL LIMITED (ACN 078 166122) AND THE UNIVERSITY O F WESTERN AUSTRALIA

WAD292 OF 2004

FRENCH  J

19 JUNE 2007

PERTH

THE COURT ORDERS THAT:

1.                  The proposed amendments to the replies by the applicant to the amended defences of the first and second respondents, which amended replies were filed on 14 June 2007, are allowed to the extent set out in these reasons.

2.                  The applicant is to file and serve by 20 June 2007, amended replies giving effect to these reasons.

3.                  The costs associated with the submissions relating to these amendments are reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT ON AMENDMENTS TO REPLY FILED BY THE UNIVERSITY OF WESTERN AUSTRALIA

1                     These proceedings are now in the 44^th day of their hearing.  The University of Western Australia (the University) claims damages and other relief against Dr Bruce Gray, its former Professor of Surgery, in respect of inventions said to have been discovered and developed by him while working for the University.  It alleges breach of contract and of fiduciary duty by Dr Gray in his exploitation of the relevant technologies which are used in the treatment of cancer.  They involve the use of microspheres in the targeted delivery of therapies to cancers and, in particular, to cancers in the liver.  The University sues Sirtex Medical Limited (Sirtex), a public company established to develop and market the technology.  It also sues the Cancer Research Institute (CRI), a charitable incorporated association, which holds shares in Sirtex in consideration of assignments to Sirtex of rights in relation to some of the technology which it had acquired from Dr Gray.  The University, subject to the approval of the Court, has settled with CRI but the settlement approval by a judge of this Court is under challenge in an appeal to the Full Court.  

2                     A question has arisen about amended replies filed by the University purportedly pursuant to leave given by the Court earlier during the hearing, in answer to reamended defences filed by Dr Gray and by Sirtex.

3                     In [164] of its substituted statement of claim, in the Second Further Substituted embodiment thereof, filed on 12 April 2007, the University alleged that by reason of Dr Gray’s breaches of his employment contract with the University the University lost at least:

(a)        the opportunity to achieve registration as the patent holder of patents for the inventions the subject of those breaches;

(b)       the opportunity to develop and commercially exploit the inventions the subject of those breaches; and

(c)        the opportunity to be recognised as the institution responsible for the discovery of the inventions the subject of the breaches,

and as a result of that loss is entitled to damages.

4                     The hearing of this action commenced on 15 March 2007.  On 19 April 2007 leave was granted to Dr Gray to amend his defence insofar as it pleaded to [164] of the statement of claim.  The amendment involved the addition of a new subpar 269.4 and new [270] and [271].  The amendments all invoked the settlement agreement between the University and CRI to support a plea that the University had failed to mitigate its loss or damage in consenting to the dismissal of its claim against CRI.  The terms of that settlement, under which the University authorised CRI to transfer its shares and options to a third party entity, were also pleaded ([270]).  In [271] it was said that any loss the University suffered in respect of the technologies which were held by CRI was caused by the University’s conduct in agreeing to the dismissal of its action against CRI in these proceedings and entering into the agreement with the association in the form approved by the Court on 8 March 2007.

5                     In an amended defence and cross-claim against the University, Sirtex pleaded, at [174] an awareness on the part of the University prior to 11 October 1999 that certain provisional patents had been lodged by its predecessor company and that in July 2000 the University was aware of the contents of its prospectus.  By 11 October 1999, 17 July 2000 and 28 February 2003 the University was said, by Sirtex, to have been put on inquiry as to information then publicly available on the database maintained by the Australian Commissioner of Patents in reference to the names of Bruce Gray and Paragon Medical Ltd (Paragon Medical) ([174]).  Despite being put on inquiry of these matters it was said by Sirtex that the University chose not to take any action to vindicate the rights it asserted against Dr Gray, Sirtex or CRI and chose not to communicate with Sirtex.  It was said to have stood by and permitted the raising of funds and acceptance of subscriptions for, and issue to investors, of shares in Sirtex.  In addition Sirtex said that between 26 March 2003 and 26 October 2004 the University knew each fact upon which it based the claim which it asserted against Dr Gray, Sirtex and CRI and despite such knowledge consciously concealed its claims from Sirtex and thereby stood by and permitted Sirtex to make profits ([176A]).

6                     Sirtex also relied upon the settlement by the University with CRI to support a plea, inter alia, that it waived certain of its rights ([182A]), that Sirtex was entitled to a credit ([182B]) and that the University had failed to mitigate its loss ([182C]).

7                     Sirtex cross-claimed against the University and in its amended cross-claim alleged that the University breached a duty of care and engaged in conduct that was misleading or deceptive or likely to mislead or deceive.  This plea was based upon representations said to have been made by an officer of the University, Professor Barber.  It claimed that in reliance upon representations made by Professor Barber, it entered into transactions under which it acquired the relevant technology.  By its amendment, Sirtex asserted that if the University were to succeed in the proceeding on its claim for ownership of the “Acquired Inventions” then Sirtex ought to be entitled to an equitable lien against the inventions corresponding to its investment in their development, protection and marketing.  It added to the relief claimed, a claim for a declaration of its entitlement to such a lien. 

8                     On 19 April 2007 I gave leave to the University to file a reply to the amended defence filed by Dr Gray.  It is not in dispute that that leave was limited to an amendment to the University’s reply to deal with the matters raised in the amendment to Dr Gray’s defence, ie failure to mitigate loss by reason of the CRI settlement and associated pleas.  The amended Sirtex defence and cross-claim also required an amended reply to be filed.

9                     The amendments to the replies filed on 14 June 2007 went well beyond the responses to the amendments to the defences.  That is accepted by counsel for the University.

10                  The Court heard submissions on whether, and to what extent, the amended replies should be allowed. 

The University’s amendment to the reply to Dr Gray’s defence

11                  The principal new elements of the University’s reply to Dr Gray’s defence were:

The first amendment – paragraph 17(e)

12                  In [21.4A] to [21.4D] of Dr Gray’s defence he alleged that on 1 September 1987 the director of the University’s Centre for Applied Business Research (CABR) reported to the then Deputy Vice Chancellor-Research the progress of research commercialisation projects including two involving Dr Gray ([21.4A]).  He said that either CABR or Dr Gray, at CABR’s directions, sought external funding to support the development of what was known as the SIRT2 Invention ([21.4B]).  Dr Gray said that in early 1988 he prepared and submitted to the University an equipment grant application explaining the work performed in relation to the SIRT2 Invention, the DOX Spheres Invention and the Thermo-Spheres Invention ([21.4C]).  It was then said in the defence that in late 1988 or early 1989 CABR, acting as delegate of the University’s Vice Chancellor determined that it would cease work on obtaining patent protection for the SIRT2 Invention and Thermo-Spheres Invention, cease any attempt to commercialise any of the research projects being conduct by Dr Gray and cease any attempt to raise funds to support those projects.  The University was said to have thereby abandoned the exploitation of the relevant inventions ([21.4D]).

13                  In [17(e)] of its amended reply dealing with these paragraphs, the University said that in September or October 1988 Uniscan, which was a company owned or controlled by the University under the name of CABR, referred the projects then under consideration by it back to the University Department of Surgery for further research and development.  Such referral was said not to have constituted an abandonment or waiver or to have affected Dr Gray’s contractual or fiduciary obligations to the University as pleaded in the statement of claim.

The second amendment – paragraph 20

14                  The next amendment in the reply was to [20] principally by the addition of subpars 20(c)(ii) and 20(c)(iii), A, B, C, D and E.  Paragraph 20 of the reply dealt with [24] of Dr Gray’s defence.  In [24] Dr Gray said that, in reliance upon the University’s conduct pleaded in [21.4D] amounting to abandonment of the exploitation of the inventions [24A.1] and the University’s failure to assert any right or interest in research into microsphere targeted treatment of liver cancer, he procured CRI to enter into the Centre for Applied Cancer Studies agreement and devoted funds and resources to the development of the treatment ([24A.2]).  Dr Gray also said in his defence that he met with the Deputy Vice Chancellor, Professor Michael Barber, on or about 24 July 1996 and disclosed the nature of his research, the fact that the company Paragon Medical was funding CRI’s research into microparticle technology and that Paragon Medical would acquire the intellectual property to such technology and attempt to commercialise it ([24.1]).  He said that he repeated this in a letter dated 26 July 1996 ([24.2]), that the University with knowledge of those matters stood by and allowed or acquiesced in the funding of research conducted by CRI to be supplied by Paragon Medical.  He said that in or about January 1997 CRI, by a letter dated 17 January 1997 addressed to the Deputy Vice Chancellor-Research, sought assurances that the University had no claim on the relevant technology ([24.3 and 24.4]).  Various things said to have been known to the University were then set out in the defence.  The University was said to have been put on inquiry from the time of receipt of the letter as to the nature and extent of interest which might be asserted by it arising from the research and the matters referred to in the letter ([24.4B]).  Reliance was then placed upon a letter from Professor Barber, the Deputy Vice Chancellor-Research, exercising the delegated powers of the Vice Chancellor who confirmed to Dr Gray and CRI that the University had no interest financially or otherwise in technology funded by CRI referred to as:

1.         the use of small ceramic particles to treat patients;

2.         the use of new matrix to transport an anti-cancer drug;

3.         the use of targeted hyperthermia in the treatment of patients.

15                  The University was said to have made reasonable inquiries and to have determined on the basis of those inquiries that it had no interest or claim to the intellectual property ([24.5]).  It was said by Dr Gray that, in reliance on the University’s conduct and the representations made by Professor Barber, Dr Gray and Sirtex and any venture partner were entitled to act on the basis that the University asserted no financial or other interest.  It was also alleged that the University had either waived any breach by Dr Gray of its Patent Regulations and Intellectual Property Regulations or was estopped from asserting any interest in the intellectual property.

16                  In its amended reply, in [20(c)], the University pleaded a new set of representations said to have been made by Dr Gray.  It asserted that by Dr Gray’s conduct in not complying with notification conditions under the patent and intellectual property regulations he impliedly represented that no patentable invention and no intellectual property likely to be commercially significant had been developed and/or discovered by him.  He was also said to have expressly represented to the University that it did not have any rights or interests in the relevant inventions and that their development and discovery was not as a result of work undertaken by any University employee within the course of their employment.  Particulars of the representations were then given, including one said to be by way of a letter from Dr Gray to Professor Derek Schreuder of 16 July 1999.  The representations were said to have been false.  For this reason it was said the University did not know that it had, and was unable to pursue, any causes of action in relation to breaches of the prompt notification condition and the prompt reporting condition prior to its receipt of counsel’s advice on 23 September 2004, alternatively, in or about April 2003 when Dr Yan Chen met with representatives of the University and, alternatively, in or about July 2000, the date of the Sirtex prospectus.  A fourth alternative of 22 December 1998 was also pleaded, being the day six years prior to the commencement of the proceedings.  Then it was said, further or in the alternative, that in reliance upon the representations the University did not pursue any causes of action in relation to breaches of the reporting conditions before in or about February or March 2003.

Consequential amendments

17                  There were consequential amendments which flow through from the proposed amendments to [20]. 

Amendment to paragraph 28(b)(iv)

18                  There was an amendment to [28(b)(iv)] which purported to support the assertion that Sirtex is disentitled to any allowance in respect of the skill or expertise of its officers, employees or agents and does so by additional reference to [16A] and [146A] of the statement of claim.  The inclusion of the reference to [16A]  and [146A] is appropriate.

19                  A similar reference to [16A] and the non-existent [146A] appeared in [59(b)(iv)] and [63(b)(iv)] of the amended reply.  It also appeared in [68(b)(iv)], [77(d)], [78(b)(iv)] and [84(b)(iv)].  At [85(b)(ii)] the University would amend its reply to assert that Dr Gray’s breaches of the prompt notification condition and the prompt reporting condition precluded it from bringing proceedings in respect of such breaches prior to each of the alternative dates mentioned earlier.  This was in lieu of the previously pleaded earliest date of 21 December 2004.

Amendment to paragraph 85 of the reply

20                  Paragraph 85(c) made some amendment consequential upon the amendments to [20].  In [85(d)] it was newly alleged that Dr Gray’s contract contained an implied term that he owed to the University a duty of fidelity and good faith and that by the matters pleaded in [20(c)(ii)] and [20(c)(iii)(A) to (C)] he breached that duty.  The University said that by reason of that breach it suffered loss and damage.  It particularised this assertion by saying:

If any claims now brought by the University are barred by operation of the Limitation Act 1935 (WA), then as at the date such claims became statute barred and by reason of Dr Gray’s breaches of the duty of fidelity and good faith, the University lost the opportunity to be put in the position that the University would have been in had Dr Gray complied with the Prompt Notification and Prompt Reporting conditions.

21                  In [85(e)] the University said that to the extent that Dr Gray relied upon s 47 of the Limitation Act 1935(WA) it repeated various matters pleaded earlier in the statement of claim and said that each of the breaches of fiduciary duty alleged was undertaken by Dr Gray with knowledge of or with reckless disregard for the fiduciary and contractual duties owed to the University.  It said that, on a proper construction of s 47, that section does not apply to Dr Gray’s breaches of fiduciary duty in that such claims are founded upon a fraud or a fraudulent breach of trust within the meaning of s 47.  Further or alternatively, it was said the University seeks to recover the proceeds of trust property previously converted by Dr Gray to his own use.

Amendment to paragraph 86 of the reply

22                  The remaining amendment to the reply is [86] which is the only amendment that is responsive to the University’s amended defence.  That amendment is not contentious.

Proposed amendments to the reply to the Sirtex defence

23                  By its amended reply to the Sirtex defence, which was also filed on 14 June 2007, the University made amendments to [11A], [16], [29A], [30], [37A] and [43A] which were not opposed by Sirtex as they responded to new allegations in Sirtex’s amended defence and cross-claim dated 2 May 2007. 

24                  In [8(d)] of the reply the University raised a response to [13(d)(4)] of the Sirtex defence.  In that part of its defence Sirtex alleged that Dr Gray disclosed to CABR the research conducted by him in relation to microparticle treatments including the treatment of tumours with radiation, cytotoxic drugs and by hysteresis heating and sought CABR’s assistance in its commercialisation.  By the amendment to the reply the University did not admit any of the matters alleged and said that they did not constitute disclosure.  This amounted to little more than a joining of issue and appears to be uncontroversial. 

25                  In [8(j)] of the amended reply to Sirtex, the University added a new subpar (iii) asserting that in September or October 1988 Uniscan referred projects then under consideration by it back to the University Department of Surgery for further research and development.  Such referral did not constitute an abandonment or waiver of the University’s rights or affect Dr Gray’s contractual or fiduciary obligations.  This was put in in answer to [13(10)] of the Sirtex defence which alleged abandonment by the University of the exploitation of the relevant inventions.  Again this does not appear to be much more than a joining of issue.

Amendment to paragraph 10 of the reply

26                  In [10] of the University’s reply dealing with the application of s 38(1)(c) of the Limitation Act, it added the contention that Dr Gray’s alleged breaches of the notification conditions of the patent regulations and the intellectual regulations precluded it from bringing proceedings in respect of his breaches of contract prior to the alternative dates invoked in the amended reply to Dr Gray’s defence, ie 23 September 2004, April 2003, July 2000 and 22 December 1998.  In [10(c)] a new subpar (ii) was introduced and implied an express representation alleged in the amended reply to Dr Gray’s defence raised and linked in [(iv)] to each of the dates before which it was said, in the alternative, that the University was precluded from bringing any action.  In [10(d)] the University newly alleged breach of fidelity and good faith to the University by Dr Gray with the University suffering loss and damage as a result.

The University’s submissions in relation to the amendments

27                  The University said that its amended replies constituted consequential amendments to:

(a)        meet the defences raised by Dr Gray and Sirtex as they have emerged during the course of the hearing; and

(b)        encompass the evidence which has been adduced.

They summarise the content of the amendments by saying that they:

(a)        plead the making by Dr Gray of the false representations about the inventions - already relied upon – on additional occasions to those pleaded ;

(b)       plead a breach by Dr Gray of a contractual duty of fidelity and good faith as an implied term at law of a contract of employment;

(c)        plead in response to the contention by Dr Gray (in his opening) that his pleading of the Limitation Act 1935 (WA) should be construed as a reference to s 47 of that Act;

(d)       in answer to the defence of laches and delay, plead various alternative times by which the applicant may be found to have had knowledge of the relevant facts; and

(e)        respond to the pleas by Dr Gray and Sirtex concerning the effect of the settlement entered into between the University and CRI.

28                  The University contends that the amendments are necessary in order to determine the real issues in the case and refer to Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146  and Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437.  The amendments are said to have no evidentiary consequences.  The University says no issues of prejudice arise.

29                  In relation to the representations the University says that in their respective defences Dr Gray and Sirtex plead various equitable defences and the Limitation Act.  The University has already pleaded the making of representations by Dr Gray said to disentitle him and Sirtex to the benefit of equitable defences or to preclude their reliance on provisions of the Limitation Act.  The University refers to its existing pleading at [20(d)(iii)] of the reply.  However, one of the proposed amendments to the reply that would bring in Dr Gray as a representor whereas previously the representation was attributed to CRI only.  In [85(c)(i)] of the reply prior to amendment, there was a plea that Dr Gray impliedly represented that no patentable invention and no intellectual property likely to be commercially significant had been developed and/or discovered by him.  This representation is said to have emerged from his conduct in not complying with the prompt notification and prompt reporting condition.

30                  The University says that by its amendments it pleads the making by Dr Gray of two additional express representations namely that the University does not have any right or interest in the inventions and that they were not as a result of work undertaken by any University employee within the course of employment by the University.  Such representations are said to be of similar importance to those pleaded previously.  They have no evidentiary consequences and no issues of prejudice arise.

31                  In relation to the plea of breach of duty of fidelity and good faith, the University now seeks to plead in reply that Dr Gray’s misrepresentations breached his fidelity and good faith and that through those breaches the University lost the opportunity to be put in the position that it would have been in had he complied with the conditions.  In so doing the University is said simply to be pleading an additional legal consequence of matters otherwise pleaded. 

32                  In relation to s 47 of the Limitation Act the University points out that Dr Gray pleaded reliance upon the Limitation Act without specific reference to s 47 of that Act.  On the other hand, the Sirtex defence relied upon s 47 of the Limitation Act in answer to the claims based on breach of fiduciary duty by Dr Gray and s 38(1)(c) of the Limitation Act in relation to alleged breach of contract by Dr Gray.  In reply to Sirtex’s defence, which expressly raised s 47, the University did raise a contention that its claims of fiduciary duty were founded upon a fraud or fraudulent breach of trust within the meaning of s 47 of the Limitation Act to which Dr Gray was a party. 

33                  The University relies upon the fact that during the course of Dr Gray’s opening it was asserted that references to the Limitation Act in his defence should be construed as references to s 47.  The University maintains a position, which it has previously stated at the trial, that the paragraphs of Dr Gray’s defence which invoke the Limitation Act are pleas in response to allegations by the University of breaches of contract and are not in response to allegations by the University of breaches of fiduciary duty.  In consequence it is said Dr Gray’s defence pleads s 47 in response to allegations of breach of contract to which s 47 simply cannot apply and does not plead s 47 in response to the allegations that Dr Gray breached his fiduciary duty.  In the alternative, the University now seeks to plead, in reply to Dr Gray’s invocation of s 47, fraud or fraudulent breach of trust in identical terms to what was previously pleaded in response to Sirtex’s and CRI’s pleading of that section.

Dr Gray’s submissions 

34                  On behalf of Dr Gray it is said that the limitation period was first raised in the defence filed on 13 July 2005.  The first reply was filed by the University on 24 March 2006.  It was amended on 12 March 2007 pursuant to orders made on 23 February 2007. 

35                  It is said that the proposed amendments to [17(e)(i)] are unsupported by the present evidence.  As to the new proposed pleading in [20(c)(iii)] which raises the implied and expressed representations attributed to Dr Gray, he says that they constitute a major expansion of the allegation of breach of the notification condition.  Moreover they raise a wholly new positive case of a course of conduct by him in the way of representations made to the University.  Some of the representations are said to have been made at dates which are not relevant to particular inventions.  By way of example if, as set out by way of particulars in a letter from the University’s solicitors of 14 June 2007, the Thermo-3 Invention did not occur prior to December 1998, then meetings between Dr Gray and Mr Lennon in December 1994 and January 1995 could not be relevant.  Yet they are purportedly pleaded as supporting representations relevant to those inventions.

36                  Paragraph 20(c)(iii)(D) is said to plead a wholly new series of dates by which it is said the University was unable to have knowledge of the alleged breaches.  Dr Gray complains that no adequate particulars are given of those matters.  Moreover it is said the particulars of the representations alleged would require the recall of Messrs Lennon and Barber. 

37                  In relation to the pleading in [20(c)(iii)(E)] this is said to require the recall of Messrs Barber, Robson, Lennon and Sierakowski.  Consequential amendments in [20(e)] are said to require the recall of Professor Barber.  As to amendments to [85(b)], the cascading dates, it is said that the University claims privilege over notes of a meeting between Dr Chen and representatives of the University, being the date referred to in that cascade.  This would require the recall of Dr Chen and Mr Heitman and any other relevant member of the University and the discovery of the additional documents. 

38                  Paragraph 85(b) which, in effect, raises the breach by Dr Gray of his implied obligation of a duty of fidelity and good faith to the University, is said to raise a new cause of action which is impermissible in reply. 

39                  As to [85(e)] which raises the fraud defence to s 47, it is submitted that a fraud should not be raised after the cross-examination of Dr Gray.

40                  Dr Gray also complains that the University has given no evidence as to the delay in bringing on the non-responsive amendments. 

Rulings

41                  I have canvassed the amendments and the submissions in some detail to ensure that I appreciate the contending arguments.  I do not propose to expound at length upon my rulings.  It is a matter of concern that the University should have sought to introduce substantial amendments to its reply at such a late stage in the proceedings and that it did so simply by filing the amendments without first seeking the leave of the Court.  In this respect I am not concerned with those amendments which were responsive to the amended defences and in respect of which leave was given in April and, by implication, in May when Sirtex amended its defence.  There has been no real explanation for the delay in the University’s filing of the amendments. 

42                  In the end, however, I am concerned to ensure that the pleadings reflect the real issues in the case and that amendments be allowed to that end provided they do not unfairly prejudice any party.  The question whether any amendment is likely to have any effect on the length of the trial or to delay its completion is also relevant.  At this stage the trial of the action is in the final days of evidence.  It is expected that evidence will be concluded by the middle of this week and that closing submissions will commence on 4 July 2007.  Applying those general considerations, I rule as follows on the proposed amendments to the replies.

A.  Rulings in relation to the reply to Dr Gray’s defence.     

1.         Paragraph 17(e) is allowed – it is open as a matter of characterisation of CABR’s conduct covered in evidence in cross-examination.  No unfairness is involved.

2.         Paragraph 20(c)(ii) – is allowed, it simply appears to join issue with  [24] of Dr Gray’s defence by reason of matters set out in the statement of claim.

3.         Paragraph 20(c)(iii) – these amendments seek to make a positive case out of matters which have emerged from the evidence.  This positive case of representation could reasonably have elicited a different approach in cross-examination of those witnesses said to have been affected.  If the University is thrown back on those matters which it has already pleaded it is not, in my opinion, being treated unfairly.  The representation pleas simply complicate matters by bringing in additional arguments of characterisation which are unlikely to have little bearing on the analysis of cause and effect in relation to Dr Gray’s conduct and that of the University.

4.         Paragraph 20(d) – this amendment which asserts that the Gorn letter was a representation by Dr Gray as well as by CRI is allowed.  The question of the drafting and authorship of the letter was covered in cross-examination of Dr Gray.

5.         Paragraph 28(b)(iv).  This is the first of a number of like amendments which refer, inter alia, to [146A] of the statement of claim.  It seems the amendment, which also brings in a reference to [16A] of the statement of claim, is unexceptionable.  See also [47(b)(iv)], [59(b)(iv)], [63(b)(iv)], [68(b)(iv)], [77(d)], [78(b)(iv)], [84(b)(iv)].

6.         Paragraph 85(b).  I will allow this amendment on the basis that it specifies dates before which it is said the University was precluded by Dr Gray’s non-disclosure from bringing proceedings in respect of his alleged breaches of duty.  I see no basis for the recall of any witness in respect of these matters.  They stand or fall on the existing state of the evidence.

7.         Paragraph 85(c)(i).  This will be allowed to the extent that it relies upon [20(c)(ii)].

8.         Paragraph 85(d).  This amendment is disallowed.  There is no proper basis disclosed for asserting in reply what amounts to a new cause of action.

9.         Paragraph 85(e).  The plea of fraud or fraudulent breach of trust, for the purposes of s 47 of the Limitation Act, was already in issue in the Sirtex pleading.  To that extent Dr Gray has had some notice of it.  The assertion of fraudulent breach of trust for the purpose of s 47 stands or falls on the state of the existing evidence and is a matter of characterisation on issues which have been canvassed in cross-examination. 

10.       Paragraph 86 of the amended reply is allowed as it is responsive to the amended defence.

B.  Rulings in relation to the reply to the Sirtex defence and cross-claim

1.         Paragraph 8(d) is little more than a joinder of issue on the basis of matters set out in the statement of claim and is allowed.

2.         Paragraph 8(j) is allowed consistently with the ruling in relation to the like amendment to the reply to Dr Gray’s defence.

3.         Paragraph 10(b) is allowed consistently with the previous ruling. 

4.         Paragraph 10(c)(ii) and (iii) is disallowed.

5.         Paragraph 10(c)(iv) is allowed.

6.         Paragraph 10(d) is disallowed.

7.         Paragraph 11A is not objected to and is allowed.

8.         Paragraph 16 is not objected to and is allowed.

9.         Paragraph 28(c) is allowed.

10.       Paragraph 29A is not objected to and is allowed.

11.       Paragraph 30 is not objected to and is allowed.

12.       Paragraph 37A is not objected to and is allowed.

13.       Paragraph 43A is not objected to and is allowed.

43                  The amendments to the defence to Sirtex’s cross-claim against the University are not objected to and are allowed.

Conclusion

44                  It will be necessary for the University to file fresh amended replies to give effect to the above rulings. 

Associate:

Dated:         19 June 2007