Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd

FEDERAL COURT OF AUSTRALIA

Astrazeneca Pty Limited v GlaxoSmithKline Australia Pty Limited [2006] FCAFC 22

TRADE PRACTICES – whether conduct directed at a defined section of the community is misleading or deceptive or likely to mislead or deceive – drug company promotional material directed to general practitioners

Trade Practices Act 1974 (Cth) s 52(1)
Federal Court of Australia Act 1976 (Cth) s 24(1)

Medical Benefits Fund of Australia Limited v Cassidy (2004) 205 ALR 402
Fox v Percy (2003) 214 CLR 118
CSR Limited v Della Maddalena [2006] HCA 1
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Taco Company of Australia Inc v Taco Bell Pty Limited (1982) 42 ALR 177
Campomar Sociedad, Limitada v Nike International Limited (2000) 202 CLR 45
Annand & Thompson Pty Limited v Trade Practices Commission (1979) 25 ALR 91
Johnson Tiles Pty Limited v Esso Australia Limited (2000) 104 FCR 564

ASTRAZENECA PTY LIMITED v GLAXOSMITHKLINE AUSTRALIA PTY LIMITED
NSD 2426 OF 2005

WILCOX, BENNETT AND GRAHAM JJ
8 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2426 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ASTRAZENECA PTY LIMITED ACN 009 682 311 APPELLANT
AND:	GLAXOSMITHKLINE AUSTRALIA PTY LIMITED ACN 100 162 481 RESPONDENT
JUDGES:	WILCOX, BENNETT AND GRAHAM JJ
DATE OF ORDER:	8 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The Appellant pay the Respondent’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2426 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ASTRAZENECA PTY LIMITED ACN 009 682 311 APPELLANT
AND:	GLAXOSMITHKLINE AUSTRALIA PTY LIMITED ACN 100 162 481 RESPONDENT

JUDGES:	WILCOX, BENNETT AND GRAHAM JJ
DATE:	8 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. The central issue in this case is whether any or all of two flyers and two advertisements published in ‘Australian Doctor’ magazine were misleading or deceptive or likely to mislead or deceive in contravention of s 52(1) of Trade Practices Act 1974 (Cth) (‘the Act’).

2. The first flyer was sent by the Respondent to some 14,000 General Practitioners throughout Australia on or about 26 November 2004.  The second flyer or brochure was published in or about February 2005 as a handout for medical detailers representing the respondent pharmaceutical company to provide to doctors and health professionals upon whom they called from time to time.  The two advertisements were first published by the Respondent in the 20 March 2005 issue of ‘Australian Doctor’.

3. All of the documents seek to promote the prescription by doctors of the Respondent’s drug ‘Seretide’.

4. Seretide is a combination inhaler, incorporating fluticasone propionate and salmeterol xinafoate, which is used for the control of asthma.  It is a medication which may only be used by patients on…