Australia, Aug. 21 -- New South Wales Land and Environment Court issued text of the following judgement on July 21:
1. By Originating Process filed on 4 June 2025, the Plaintiff, Mayne Pharma Group Ltd ("MPG") seeks declarations that a notice of a material adverse change issued by the First Defendant, Cosette Pharmaceuticals, Inc. ("Cosette") was not validly issued and that Cosette did not validly terminate a Scheme Implementation Deed ("SID") dated 20 February 2025 by a purported termination notice sent by Cosette to MPG on 4 June 2025. The basis of that claim is in turn set out in MPG's Concise Statement filed on 4 June 2025 and Cosette and the Second Defendant, Cosette Australia Bidco Pty Ltd (together, "Cosette Parties") filed their Response to the Concise Statement on 13 June 2025. By its Cross-Summons filed on 13 June 2025, Cosette in turn seeks a declaration that it validly terminated the SID and seeks an order that MPG pay it a break fee pursuant to the SID and alternative relief, and it relies on its Cross-Claim Concise Statement also filed 13 June 2025 ("Cross-Claim Concise Statement") in that regard. MPG filed a Response to the Cross-Claim Concise Statement on 20 June 2025 and Cosette filed a Reply to that Response on 27 June 2025. On 11 June 2025 I made consent orders that the parties provide standard discovery. This proceeding involves matters of commercial urgency and is listed for hearing for several days commencing on 9 September 2025.
2. Issues have arisen in respect of additional discovery sought by the Cosette Parties, subpoenas and notices to produce. I made several orders dealing with the position in respect of the discovery, subpoenas and notice to produce at the close of the hearing on 17 July 2025 and in chambers on 18 July 2025. These are my reasons for making those orders.
Cosette's application for several further categories of discovery
3. By Interlocutory Process filed on 11 July 2025, the Cosette Parties sought an order under r 21.2 of the Uniform Civil Procedure Rules 2005 for discovery in some 35 categories, including several sub-categories, in a manner that was quite different to the order for standard discovery that was previously been made. As will emerge below, and was likely apparent from exchanges with Counsel at the first part of the hearing on 14 July 2025, I would not have made that order. Sensibly, by an Amended Interlocutory Process dated 16 July 2025, the Cosette Parties radically narrowed the scope of category-based discovery sought to seek only seven categories of documents, which I address below.
4. The Cosette Parties rely on the affidavit dated 10 July 2025 of Mr Michael Catchpoole in support of the original application and the narrowed application. Mr Catchpoole there acknowledged the previous order was for standard discovery and referred to correspondence between the parties in which the Cosette Parties expressed concerns as to the scope of MPG's disclosure. Mr Catchpoole also referred to correspondence raising complaints as to claims for confidentiality and as to the status of metadata relating to several documents. Mr Catchpoole also advances criticisms of the adequacy of document production by MPG in response to the order for standard discovery. Mr Catchpoole also notes that he expects that the Cosette Parties will discover substantially more documents than MPG (and that has now occurred) but it is not apparent that anything turns upon the number of documents discovered by either party. In particular, it cannot be assumed that MPG should have discovered all documents referrable to the scheme, where the matters in issue in the proceedings do not relate to the scheme generally, but only to the issues raised in the proceedings. Mr Catchpoole also points to various documents which have been produced by MPG and other documents which may or may not exist and which have not been produced by MPG. The proposition that a document has not been produced does not, without more, establish either that it exists or was discoverable or that there is any deficiency in MPG's discovery. Mr Catchpoole in turn contends that, by reference to the asserted inadequacy of MPG's discovery, the Cosette Parties require orders that MPG make further discovery of the specified categories of documents, on the basis that they are necessary for the preparation of the Cosette Parties' lay and expert evidence in the proceedings. The fundamental difficulty with that approach, put in that general way, is that it did not engage with the nature of the parties' pleaded cases in this proceeding or the extent to which the categories are relevant to those pleaded cases.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1982a0e34672554b51f6aba8)
Disclaimer: Curated by HT Syndication.
