MDS Diagnostics Limited v Inverness Medical Innovations Inc

[2011] NZCA 39

IN THE COURT OF APPEAL OF NEW ZEALAND

CA465/2010
[2011] NZCA 39

BETWEEN  MDS DIAGNOSTICS LIMITED
First Appellant

AND  SIVA PRAKASH APPANNA
Second Appellant

AND  INVERNESS MEDICAL INNOVATIONS INC
First Respondent

AND  INVERNESS MEDICAL SWITZERLAND GMBH
Second Respondent

Court:             O'Regan P, Arnold and Ellen France JJ

Counsel:         D Marriott for Appellants
C Elliott for Respondents

Judgment:      25 February 2011 at 4 pm

(on the papers)

JUDGMENT OF THE COURT

The appeal is struck out.

REASONS OF THE COURT
(Given by Arnold J)

1. The appellants have appealed against a decision of Woodhouse J in which he found that they had infringed the respondents’ copyright in certain pregnancy tests.  Woodhouse J issued injunctions against them and ordered them to pay damages.[1] 

   [1]Inverness Medical Innovations Inc v MDS Diagnostics Ltd HC Auckland CIV-2007-404-748, 24 June 2010.

2. The first appellant, MDS Diagnostics Limited, was placed in liquidation shortly after Woodhouse J’s judgment was issued.  The liquidator does not wish to pursue the appeal.  Accordingly, only the second appellant, Dr Appanna, remains. 

3. Dr Appanna wished to proceed with the appeal and sought a stay of execution from the High Court pending its outcome.  The High Court adjourned the application, on the basis of the respondents’ undertaking that they would not seek to enforce their judgment against Dr Appanna pending further order of the Court.  Dr Appanna was to proceed with his appeal with all due diligence and in particular to file and serve the case on appeal together with a proposed application to adduce further evidence by 9 November 2010. 

4. Dr Appanna did not comply with this timetable.  He applied to the Registrar of this Court for a waiver of the requirement to pay security for costs but on 3 November 2010 the Registrar declined his application and required that security in the amount of $5,560 be paid by the end of November 2010.

5. On 17 November Mr Elliott for the respondents filed a memorandum expressing concern that Dr Appanna had not complied with the timetable agreed before the High Court and sought a teleconference.  I held a teleconference on 16 December 2010, at which Mr Marriott advised that Dr Appanna was not able to pay security for costs and that he had received no instructions from Dr Appanna following the Registrar’s decision declining a waiver. 

6. On 21 December 2010, the respondents applied under r 37(1) of the Court of Appeal (Civil) Rules 2005 for an order that the appeal be struck out on the ground that security for costs was not provided by the due date.  They filed a further memorandum on 3 February 2011 in which they noted that the appellant had failed to file a memorandum in opposition and drew attention to the fact that a similar process was underway in Australia in parallel proceedings in that jurisdiction.  As at the date of this judgment, Dr Appanna has not filed a notice of opposition to the respondents’ strike application or, indeed, responded to it in any way. 

7. In these circumstances we consider that the appeal should be struck out.  Dr Appanna has not complied with the timetable agreed in the High Court, has not met his obligation to provide security for costs by the due date and has not otherwise engaged with the Court. There will be no order for costs on this application.