The High Court has published a split decision of interest in relation to appellate review thresholds in fact appeals in the context of undertakings as to damages and counter-factual scenarios.
Commonwealth of Australia v Sanofi & Ors [2024] HCA 47 began in 2007 when Sanofi obtained an injunction against Apotex to restrain it from selling generic medications that would compete with its patented products. The interlocutory orders provided that Sanofi gave an undertaking as to damages, and Apotex gave an undertaking not to take steps to list its products on the PBS.
Sanofi failed to obtain final relief against Apotex. In subsequent litigation, the Commonwealth sought $325 million in compensation from Sanofi on the undertaking as to damages for loss it says it suffered as a result of Apotex being prevented from taking steps to list its products on the PBS.
The trial judge made factual findings on the counterfactual probability of Apotex successfully listing its products on the PBS which were adverse to the Commonwealth’s case.
The High Court majority (Gordon, Edelman, Steward J) declined to review findings of fact and held that “absent special or exceptional circumstances such as plain injustice or clear error, this Court will not engage in a detailed review of concurrent factual findings of lower courts.”
Beech Jones and Jagot JJ each published dissenting judgments. Beech Jones J held that “the Commonwealth overwhelmingly demonstrated that, had the injunction been refused, Apotex Australia would have sought and obtained a PBS listing of its … products with effect from 1 April 2008 and launched at risk”
Justin Gleeson SC, Fiona Roughley SC, Grace Keesing and Megan Caristo appeared in the HCA appeal for the Commonwealth. They were instructed by Corrs Chambers Westgarth. John Sheahan KC, James Hutton SC, Simon Fitzpatrick and Brendan Lim appeared for Sanofi, instructed by Jones Day.
