Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) [2015] FCAFC 172

Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) [2015] FCAFC 172

Division 2 of Part 3-2 of Chapter 3 of the Therapeutic Goods Act 1989 (Cth) does not, expressly or by necessary implication, preclude the Commonwealth of Australia from recovering compensation pursuant to the usual undertaking as to damages; ss 26B, 26C and 26D do not create an exhaustive code to the exclusion of recovery under the usual undertaking.

Parties
Applicant: Commonwealth of Australia; First Respondent: Sanofi (formerly Sanofi-Aventis); Second Respondent: Sanofi-Aventis US LLC; Third Respondent: Bristol-Myers Squibb Investco LLC; First Respondent (wyeth Proceedings): Wyeth; Second Respondent (wyeth Proceedings): Wyeth Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
07 December 2015
Procedural Posture
Stated Case for the Opinion of the Full Court (consolidated Proceedings) / Judgment on Case Stated
Outcome
The Commonwealth of Australia is not precluded, as a matter of law, from recovering compensation pursuant to the undertakings as to damages by reason of Chapter 3, Part 3-2, Division 2 of the Therapeutic Goods Act 1989 (Cth).
Legal Topics
Patents, Interlocutory Injunctions, Undertakings as to Damages, Therapeutic Goods Act, Pharmaceutical Benefits Scheme, Statutory Remedies Vs General Law Remedies
Intellectual Property Law Pharmaceutical Law Statutory Interpretation Patents Interlocutory Injunctions Undertakings as to Damages Therapeutic Goods Act Pharmaceutical Benefits Scheme +1 more

Case Brief

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Parties

Commonwealth of Australia

Applicant

Sanofi (formerly Sanofi-Aventis)

First Respondent

Sanofi-Aventis US LLC

Second Respondent

Bristol-Myers Squibb Investco LLC

Third Respondent

Wyeth

First Respondent (wyeth Proceedings)

Wyeth Australia Pty Ltd

Second Respondent (wyeth Proceedings)

Procedural Posture

Stated Case for the Opinion of the Full Court (consolidated Proceedings) / Judgment on Case Stated

Legal Issues

  1. 1 Whether the Commonwealth of Australia is precluded, as a matter of law, from recovering compensation pursuant to undertakings as to damages by reason of Chapter 3, Part 3-2, Division 2 of the Therapeutic Goods Act 1989 (Cth)
  2. 2 Whether Chapter 3, Part 3-2, Division 2 of the Therapeutic Goods Act 1989 (Cth) creates an exhaustive statutory code excluding the Commonwealth's claims under usual undertakings as to damages

Ratio Decidendi

Division 2 of Part 3-2 of Chapter 3 of the Therapeutic Goods Act 1989 (Cth) does not, expressly or by necessary implication, preclude the Commonwealth of Australia from recovering compensation pursuant to the usual undertaking as to damages; ss 26B, 26C and 26D do not create an exhaustive code to the exclusion of recovery under the usual undertaking.

Court Disposition

The Commonwealth of Australia is not precluded, as a matter of law, from recovering compensation pursuant to the undertakings as to damages by reason of Chapter 3, Part 3-2, Division 2 of the Therapeutic Goods Act 1989 (Cth).

Orders

  • The stated question is answered 'No'.
  • Sanofi Parties pay 50% of the Commonwealth's costs on a party-party basis.