Commonwealth of Australia v Sanofi

The Commonwealth of Australia appealed to the High Court of Australia against decisions of the lower courts concerning an undertaking as to damages. The dispute arose from an interlocutory injunction obtained by Sanofi, which prevented the manufacture or sale of generic pharmaceutical products. The Commonwealth sought compensation for losses allegedly suffered because these generic products were not listed on the Pharmaceutical Benefits Scheme ("PBS") as a result of the injunction.

The High Court was required to determine the standard of review applicable to concurrent findings of fact by lower courts, particularly when an ultimate appellate court is asked to disturb such findings. The Court also considered the onus of proof in relation to loss arising from an undertaking as to damages, and whether the Commonwealth had discharged its onus in proving that the generic products would have been listed on the PBS but for the interlocutory injunction.

The Court applied the well-established principle that an ultimate appellate court should not disturb concurrent findings of fact by lower courts in the absence of special or exceptional circumstances, such as plain injustice or clear error. The Court noted that the Commonwealth's appeal did not meet this standard, as it did not concern individual rights, injustice, or clearly wrong findings. The Court found that the Commonwealth had not demonstrated that the lower courts made clear errors or caused plain injustice by failing to address its case on its merits. The Court also indicated that the Commonwealth had not discharged its onus of proof regarding the counter-factual scenario of PBS listing.

The appeal was dismissed with costs.