Commonwealth of Australia v Sanofi [2024] HCA 47

Commonwealth of Australia v Sanofi [2024] HCA 47

The appeal was dismissed because the concurrent findings of fact in the courts below—that the Commonwealth had not proved, on the balance of probabilities, that Apotex would have sought and obtained PBS listing for its generic clopidogrel product if the interlocutory injunction had not been granted—were open on the evidence and not shown to be clearly wrong or to occasion injustice. The High Court rejected the argument that a rigid shifting evidential onus applied and affirmed the established principles requiring proof of causation of loss. The Court declined to revisit or overturn the lower courts' factual determinations regarding the counterfactual scenario and the intentions/actions of...

Parties
Appellant: Commonwealth of Australia; Respondents: Sanofi (formerly Sanofi-Aventis) & Ors
Jurisdiction
Australia
Judgment Date
11 December 2024
Procedural Posture
Appeal / High Court Appeal From Federal Court (full Court)
Outcome
Appeal dismissed with costs
Legal Topics
Undertaking as to Damages, Interlocutory Injunction, Patent Law, Compensation, Causation of Loss, Onus of Proof, Standard of Appellate Review
Civil Procedure Intellectual Property Pharmaceuticals Undertaking as to Damages Interlocutory Injunction Patent Law Compensation Causation of Loss +2 more

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Parties

Commonwealth of Australia

Appellant

Sanofi (formerly Sanofi-Aventis) & Ors

Respondents

Procedural Posture

Appeal / High Court Appeal From Federal Court (full Court)

Legal Issues

  1. 1 What is the proper approach to the evidentiary and legal onus of proof for loss under an undertaking as to damages?
  2. 2 Should the High Court revisit concurrent findings of fact regarding what would have occurred in the counterfactual absence of an interlocutory injunction?
  3. 3 Did the Commonwealth prove on the balance of probabilities that Apotex would have applied for and obtained a PBS listing for generic clopidogrel but for the injunction?

Ratio Decidendi

The appeal was dismissed because the concurrent findings of fact in the courts below—that the Commonwealth had not proved, on the balance of probabilities, that Apotex would have sought and obtained PBS listing for its generic clopidogrel product if the interlocutory injunction had not been granted—were open on the evidence and not shown to be clearly wrong or to occasion injustice. The High Court rejected the argument that a rigid shifting evidential onus applied and affirmed the established principles requiring proof of causation of loss. The Court declined to revisit or overturn the lower courts' factual determinations regarding the counterfactual scenario and the intentions/actions of...

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs