University of Western Australia v Gray (No 20) [2008] FCA 498 (corrigendum 22 April 2008 & corrigendum 29 April 2008)

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FEDERAL COURT OF AUSTRALIA

University of Western Australia v Gray (No 20) [2008] FCA 498

CORRIGENDUM 2

THE UNIVERSITY OF WESTERN AUSTRALIA v BRUCE NATHANIEL GRAY, SIRTEX MEDICAL LIMITED (ACN 078 166 122) and CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)

BRUCE NATHANIEL GRAY v THE UNIVERSITY OF WESTERN AUSTRALIA and YAN CHEN

SIRTEX MEDICAL LIMITED (ACN 078 166 122) v THE UNIVERSITY OF WESTERN AUSTRALIA

SIRTEX MEDICAL LIMITED (ACN 078 166 122) v BRUCE NATHANIEL GRAY and CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)

WAD 292 OF 2004

FRENCH J

17 APRIL 2008 (CORRIGENDUM DATED 29 APRIL 2008)

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 292 OF 2004

BETWEEN:

THE UNIVERSITY OF WESTERN AUSTRALIA

Applicant

AND:

BRUCE NATHANIEL GRAY

First Respondent

SIRTEX MEDICAL LIMITED (ACN 078 166 122)

Second Respondent

CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)

Third Respondent

BRUCE NATHANIEL GRAY

First Cross-Claimant

THE 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

THE 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

JUDGE:	FRENCH J
DATE:	17 APRIL 2008 (CORRIGENDUM DATED 29 APRIL 2008)
PLACE:	PERTH

CORRIGENDUM

1 In the Reasons for Judgment delivered on 17 April 2007 remove Annexure 2 and substitute the attached.

Associate:

Dated:

ANNEXURE 2

This annexure covers what were described by Dr Gray in his closing submissions as successful research applications 1985 to 1996 and 'NH MRC Grants’.

Application	Doc Title	Investigator	Grant Body	Amount Received	Invention
Date	Doc Title	Investigator	Grant Body	Amount Received	Invention
28/01/1985	Augmentation of effect of chemotherapeutic agents	Mander, Gray, Burton	RPH	$10,000 (microspheres) $3,770 (lab assistant)	DOX*
28/01/1985	(1985-4) Augmentation of effect of chemotherapeutic agents	Mander, Gray, Burton	RPH	$10,000 (microspheres) $3,770 (lab assistant)
25/07/1985	Manipulation of tumour blood flow to facilitate therapy	Gray	UWA Special Research Grant	$57,510 for 1986-1987; Additional $2060 awarded for ‘maintenance’ in 1987	SIR
25/07/1985	(1986-87) Manipulation of tumour blood flow to facilitate therapy	Gray	UWA Special Research Grant	$57,510 for 1986-1987; Additional $2060 awarded for ‘maintenance’ in 1987
6/12/1985	Treatment of Hepatic Metastases with Intra-hepatic radioactive microspheres	Mander, Burton	UWA (Faculty of Medicine)	$3,990	SIR
24/03/1986	The Utilization of Microspheres as Vehicles for the Accurate and Sustained Delivery of Anti-Cancer Drugs.	Hodgkin; Mau; Burton; Gray	CSIRO/UWA Collaborative Research Fund	$36, 571	DOX*
30/01/1987	The Manufacture of Chemotherapeutic Microspheres with Novantrone, Floxuridine and Mitomycin-C	C Jones; Burton; Gray	RPH	$3,000	DOX*
26/06/1987	(1987-4) Hyperthermia of tumours utilising hysteresis heat loss from selectively targeted ferromagnetic particles	Gray, Detchon	Clive and Vera Ramaciotti Foundation Research	Nil. Grant is marked “unsuccessful”
27/11/1987	Assessment of the ability of 5-FU to prevent liver and peritoneal metastases from colonic carcinoma	Archer, Gray	UWA – Faculty of Medicine	Not in Evidence
9/12/1987	Polymer mediated chemotherapy of localised tumours	Gray, Burton	RPH	$6,240	DOX*
16/08/1988	Manufacture of sustained release microspheres for 5FU, FUDR and mitrozantone	Burton; Trotter	CFWA (administered by UWA)	$32,330	DOX*
28/11/1988	Selective internal radiation therapy for metastatic liver cancer	Gray	UWA – Faculty of Medicine	$8,800	SIR
x/x/1988 **	Clinical Trials in Bowel Cancer / Redistribution of liver blood flow		NHMRC	$17,000/ $42,000
29/11/1988	Electromagnetic Radiation induced Hyperthermia treatment of Liver Tumours	Kelleher	UWA – Faculty of Medicine	$3,567	THERMO*
x/x/1988 **	Electromagnetic Radiation induced Hyperthermia treatment of Liver Tumours		MEDWA	$38,750 sought - amount received not specified.
26/01/1989	Selective Internal Radiation Therapy for the Treatment of Metastatic Liver Cancer	Gray	RPH	$6,518	SIR
31/01/1989	Electromagnetic Radiation induced Hyperthermia Treatment of Liver Tumours	Kelleher; Burton	RPH	$3,567	THERMO*
31/01/1989	A pilot study of Adjuvant SIR-Therapy	Burton	RPH	$2,104	SIR
24/02/1989	Augmentation of the Dynamics of adriamycin chemotherapy	Burton, Chen	NHMRC (administered by UWA)	$117,279.84 for 1990 to 1992	DOX
26/06/1989	Efficacy of floxuridine transported on ion exchange microspheres	Burton; Chen	CFWA (administered by UWA)	$36,132	DOX
27/08/1989	Research Grant Application entitled 'Effect of treatment on immune cell population'	Gray; Codde	RACS (administered by UWA)	Not in Evidence
16/02/1990	Development of Ferromagnetic Microspheres for treatment of Cancer by induced hyperthermia resulting from hysteresis heating	S Jones	RPH	$5,700	THERMO
16/02/1990	Formulation of Macromolecular Conjugates of FUDR	Chen, Blackbourn	RPH	$5,700	DOX*
16/02/1990	Grants 1990-7: Optimization programme for SIR-Therapy	Gray; Burton	RPH	$5,555
28/02/1990	Randomised Trial of Selective Internal Radiation Therapy in Liver Cancer	Gray; Van Hazel	NHMRC (administered by UWA)	$213,212.68 over 3 years to 31 July 1994	SIR
20/06/1990	Hyperthermia of tumours utilising hysteresis heat loss from selectively targeted ferromagnetic particles	S Jones; Gray	Clive and Vera Ramaciotti Foundation Research	Not in evidence	THERMO
20/06/1990	(1990-8) Hyperthermia of tumours utilising hysteresis heat loss from selectively targeted ferromagnetic particles	S Jones; Gray	Clive and Vera Ramaciotti Foundation Research (administered by RPH)	Not in Evidence
23/01/1991	Therapeutic evaluation of Cytotoxic Drug Carriers	Codde	RPH	$13,260	DOX*
31/01/1991	Formulation of sustained release carriers for Cisplatin	Chen, Blackbourn	RPH	$9,970	DOX
31/01/1991	Optimization of Magnetic Parameters for Hyperthermia Cancer Therapy using Hysteresis heating	S Jones, Gray	RPH	$8,994	THERMO
3/05/1991	Development of complexed doxorubicin-metal ion microspheres	Hodgkin; Mau; Burton; Chen	CSIRO/UWA Collaborative Research Fund	$31,917	DOX
11/02/1992	Scheduling Hyperthermia and Chemotherapy	Burton	RPH	Not in Evidence
14/02/1992	Development of biodegradable magneto- responsive microspheres'	Gray, Chen, Blackbourn	RPH	$3,680	Other Projects (THERMO*)
19/05/1992	Magnetoregulated release of doxorubicin from albumin-heparin microspheres	Jones; Chen	CFWA (administered by RPH)	$37,000	Other Projects (THERMO*)
15/09/1992	Development of a Hyperthermia Research Program	Burton, Jones, Gray, Chen, Codde	Telethon	Unclear. Possibly $50,000 or $40,000	THERMO*
2/12/1993	Magneto-regulated doxorubicin delivery	Chen	RPH	$4,350	Other Projects (THERMO*)
2/12/1993	Grants 1993-1: In Vivo Investigation of Induced Hyperthermia by Ferromagnetic Hysteresis Technique	S Jones	RPH	$10,010	THERMO
2/12/1993	Grants 1993-2: Magnetoregulated Doxorubicin Delivery	Chen	RPH	$4,350
11/02/1994	Investigation of Microsphere Mediated Hyperthermia in Rabbit Tumour Model	S Jones	RPH	$9,650	THERMO
7/07/1995	Development of a Device for Evaluation of a Rotational Hysteresis Losses	S Jones	ARC (administered by UWA)	$12,609	THERMO
8/11/1997	The development of targeted products for the treatment of cancer		Start, Ausindustry Grant	$950,000 [Agreed Maximum Grant]	THERMO*

* Where the designated invention is asterisked, the claim of relevance to that invention is disputed by the University either on the basis that the named investigators are or include people who are not relevant inventors or that the grant relates to different issues.

** Where an entry is double asterisked, the relevant application is not itself in evidence, but is rather referred to in an endorsement on a separate application for a different grant.

The following dates represent applications that were duplicated across Schedules B and C and were thus removed.
	6/12/1985
	24/03/1986
	30/01/1987
	9/12/1987
	16/08/1988
	28/11/1988
	29/11/1988
	26/01/1989
	31/01/1989
	31/01/1989b
	24/02/1989
	26/06/1989
	16/02/1990
	16/02/1990b
	2/11/1994
	28/02/1990
	23/01/1991
	31/01/1991
	31/01/1991b
	3/05/1991
	14/02/1992
	19/05/1992
	2/12/1993
	7/07/1995

FEDERAL COURT OF AUSTRALIA

University of Western Australia v Gray (No 20) [2008] FCA 498

CORRIGENDUM

THE UNIVERSITY OF WESTERN AUSTRALIA v BRUCE NATHANIEL GRAY, SIRTEX MEDICAL LIMITED (ACN 078 166 122) and CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)

BRUCE NATHANIEL GRAY v THE UNIVERSITY OF WESTERN AUSTRALIA and YAN CHEN

SIRTEX MEDICAL LIMITED (ACN 078 166 122) v THE UNIVERSITY OF WESTERN AUSTRALIA

SIRTEX MEDICAL LIMITED (ACN 078 166 122) v BRUCE NATHANIEL GRAY and CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)

WAD 292 OF 2004

FRENCH J

17 APRIL 2008 (CORRIGENDUM DATED 22 APRIL 2008)

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 292 OF 2004

BETWEEN:

THE UNIVERSITY OF WESTERN AUSTRALIA

Applicant

AND:

BRUCE NATHANIEL GRAY

First Respondent

SIRTEX MEDICAL LIMITED (ACN 078 166 122)

Second Respondent

CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)

Third Respondent

BRUCE NATHANIEL GRAY

First Cross-Claimant

THE 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

THE 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

JUDGE:	FRENCH J
DATE:	17 APRIL 2008 (CORRIGENDUM DATED 22 APRIL 2008)
PLACE:	PERTH

CORRIGENDUM

1 In the Reasons for Judgment delivered on 17 April 2007:

1. Page 2, Order 14 should read:

“Any party in respect of whom an order ……”

2. Page 3 delete “Introduction” and insert “Index”.

3. At [20], after “make orders” insert “as to costs”.

3. At [87] on p 28, the first line after the quotation, delete “London and North Western Railway Co [1893] 1 Ch 16 at 78”and insert “London and North Western Railway Co v Evans [1893] 1 Ch 16 at 28”.

4. At [161], line 6, delete “grant”.

5. At [246], item 14, delete “, and were described by its Vice-Chancellor as being,”. Delete quotation marks around “in a state of disarray” so that item 14 now reads:

“In 1986 UWA’s intellectual property policies and practices were in a state of disarray.”

Associate:

Dated:

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