Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) & Ors

The parties in this matter before the High Court of Australia are the Commonwealth of Australia and Sanofi (formerly Sanofi-Aventis), Sanofi-Aventis US LLC, and Bristol-Myers Squibb Investco LLC. The dispute concerns the interpretation of certain email communications and their implications for the timing of a "launch at risk" event, which appears to be a critical issue in the underlying legal proceedings. The transcript records oral submissions being made to the High Court, indicating that this is an appeal or a further hearing of the matter.

The legal issues before the High Court include the correct interpretation of a sequence of emails, specifically an email containing the phrase "game on" and a subsequent email referencing "further advice/approval." The court is required to determine whether these communications signify a definitive decision to proceed with a "launch at risk" or if they remain contingent on further approval. A related issue is the relevance and interpretation of evidence concerning instructions from a Mr. Sherman, and whether the email exchanges confirm or contradict the need for his explicit approval before proceeding.

Counsel for the respondents, Mr. Sheahan, argued that the "game on" email, when viewed in its chronological context, does not represent a final decision. He contended that the subsequent email, which explicitly mentions the need for "further advice/approval," affirms the requirement for such authorisation. Mr. Sheahan further submitted that the evidence of Mr. Millichamp, a key witness, consistently points back to earlier instructions from February 2007, and that there was no evidence of intervening oral or written instructions from Mr. Sherman that would negate the need for explicit approval. The respondents' position is that the word "approval" in the relevant email is critical and supports the findings of the courts below that further approval was necessary.