Australia | Five key lessons from the High Court's decision in the Commonwealth damages case

Australia's High Court has delivered a much-anticipated judgment in the Commonwealth damages case (Commonwealth of Australia v Sanofi [2024] HCA 47). While the Commonwealth has failed in its attempt to recover $325 million in damages from Sanofi, the judgment provides important lessons that are expected to strengthen the prospects of success for both the Commonwealth and generics in future similar cases.

Introduction

On 11 December 2024, the High Court of Australia delivered a much-anticipated judgment concerning the Commonwealth's attempt to recover $325 million in damages from Sanofi for increased costs to Australia's Pharmaceutical Benefits Scheme (PBS), incurred when a preliminary (or "interlocutory") injunction (PI) granted to Sanofi delayed market-entry of generic clopidogrel products by approximately 2 years.