Case Note: Commonwealth v Sanofi And The Federal Court Decision

On 28 April 2020, Justice Nicholas handed down his decision in the case of the Commonwealth (Australian Department of Health) v Sanofi (Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) (No 5) [2020] FCA 543).

In this case, the Commonwealth claimed damages from Sanofi in the sum of AU$325 million pursuant to the Cross-undertaking given by Sanofi in order to qualify for a Preliminary Injunction (PI) (which was granted and later overturned) to compensate any party adversely affected by the PI. The Commonwealth argued that the granting of the PI prevented it reducing the subsidy paid to Sanofi pursuant to the Australian PBS that would have been consequent upon the generic, Apotex, entering the market. The Commonwealth argued that the damage could roughly be calculated as multiplying the amount of the subsidy that would have occurred if the PI had not prevented Apotex entering the market by the duration of the injunction.