Biota Scientific Management Pty Ltd & Anor v Glaxo Group Ltd & Ors [2008] VSC 110 – witness statement fights

April 13, 2008 |

Biota v Glaxo will be one of the big court room battles this year. It is in the commercial list though it was issued in May 2004.  That sort of progress is long even by the normal list standards in the Supreme Court.  Three amended statement of claims will do that. 

 Mega litigation.  The figures, care of Whelan J says it all:

8 The proceeding is a complex one. The current statement of claim is 250 pages long (excluding schedules) and contains 444 paragraphs. It is signed by six barristers, two of whom are senior counsel. The defence is 297 pages long and contains 445 paragraphs. It, and its immediate predecessor, are signed by 10 barristers, two of whom are members of senior counsel. The size of the pleadings is not a result of prolixity, but is rather a consequence of the complexity of the dealings between the parties and the consequent complexity of the dispute which has now arisen.


The Defendants took issue with the witness statements claiming that they cover matters outside the scope of the statement of claim.  Whelan J agreed that bringing the matter back before him for resolution is preferable to the time tested response to such statements in setting out objections in writing and raising those objections at trial. After considering the expert statements in light of the pleadings the plaintiffs were ordered to go away and do them again when he stated:  

65 As to the witness statements, it seems to me that the appropriate course at this stage is to order that the plaintiffs cannot rely upon them in their current form. I do not consider it is appropriate for me to attempt to edit the statements. Apart from anything else, simply removing passages will alter the sense of what remains. There is time for them to be revised and that is the appropriate course, unless a further amendment application alters the analysis.

66 I will accordingly direct that the plaintiffs cannot rely on the witness statements of Dr Janet Arrowsmith-Lowe, Dr W. Shannon McCool, Mr Toshio Nagae, Mr Nicholas Williams and Dr Adam J Fein which have been filed and served in their current form.


If the average commercial barrister were to be fully frank he or she would admit that Replies are a vexed area of pleadings.  How much detail to put in, how much law and how much fact.  I always take comfort in the advice contained in  Roses Pleadings without Tears in Australia:

“ must resist the understandable instinct to ‘have another go’ and file a Reply, unless there are proper legal grounds for doing so .To do otherwise is not only to break the rules but to detract from the integrity of your case.  A good cause of action does not get any better by repitition – indeed repitition itself sows the seeds of doubt, from a tactical point of view.  Thus, unless you have to do so, do not draft a Reply.   

 Amen brother, except the use of “Thus.”  Lawyers are addicted to thus’ and therefores.  Thankfully the world of heretofor is less and less popular. Why it was ever thus is beyond me.  

Rose does identify three cases where a reply is appropriate:

  • where the Defence has raised a point for the first time which requires clarification from the Plaintiff;
  •  where some new matter may have arisen as a direct and relevant result of something that has been pleaded in the defenc;
  • where there may be certain issues to which admissions can be made in order to delimit the extent of contention in trial.

The first two points can be tricky.  If the issue is significant should it not be in the statement of claim?

In this case Whelan took a very basic approach finding the amendments to the Reply raise new featurs and components of a contractual breach claim saying:
63 Whether I am right or not about that conclusion, it seems to me that on any view the proposed amendments introduce new features or components of the allegations of contractual breach. They ought to be in the statement of claim if they are to be relied upon. I do not consider that they represent an answer to the matters the defendants have raised, although I understand how, as a practical matter, the matters alleged in paragraph 152(e) of the defence (and the other paragraphs raising similar matters) may have prompted the plaintiffs to reconsider their analysis of what their case is concerning the pre-launch and launch periods. The result, most clearly embodied in proposed paragraphs 12A(c) and (d) of the proposed amendments, is a proposed expansion of the plaintiffs’ case on contractual breach so as to incorporate criticisms of the defendants’ conduct pre-launch and at launch. The whole of the case of breach should be in the statement of claim.

64 Given this conclusion it is unnecessary for me to deal with the individual amendments and the particular objections to them.

This round went to the Defendant.  It will be interesting to see whether the Plaintiff’s can keep the August trial date. Rewriting expert witness statements when the witnesses are located overseas is no easy task.

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