CSL Limited v GlaxoSmithKline Australia Pty Ltd

CSL Limited brought an action against GlaxoSmithKline Australia Pty Ltd (GSKA) seeking interlocutory injunctive relief in relation to certain representations that GSKA had made about its own HPV vaccine, CERVARIX. CSL contended that GSKA's representations were misleading or deceptive and had the potential to cause harm to CSL by damaging the reputation of its own HPV vaccine, GARDASIL, and causing loss of market share and financial loss. GSKA opposed the application on the basis that it would suffer significant prejudice and there was no real risk of harm to CSL. The case was heard by the Federal Court of Australia.

The court was required to decide whether the balance of convenience favoured the granting of interlocutory injunctive relief in favour of CSL. In considering this, the court took into account the degree of probability of the apprehended injury, the degree of the seriousness of the injury, and the requirements of justice between the parties. The court noted that there was a serious question to be tried in relation to certain of the representations made by GSKA, but it was not satisfied that the risk of harm to CSL was sufficiently high to warrant the grant of an injunction at that stage.

The court found that there was no evidence of any real irreparable harm to CSL and that GSKA's inability to make the representations complained of would place it at a significant disadvantage in the HPV vaccine market. The court also noted that GSKA had proffered undertakings and agreed to a speedy trial. Accordingly, the court refused the interlocutory injunctive relief sought by CSL. The question of costs was stood over to a later date, and the trial was fixed for 13 November 2006 to be limited to questions of liability and injunctive relief. The issue of damages was to be listed for hearing on a date to be fixed.

In summary, the court refused CSL's application for interlocutory injunctive relief against GSKA's representations about its HPV vaccine, CERVARIX. The court found that there was no real risk of harm to CSL at that stage, and that GSKA's inability to make the representations complained of would place it at a significant disadvantage in the HPV vaccine market. The court also noted that GSKA had proffered undertakings and agreed to a speedy trial. The issue of costs was stood over, and the trial was fixed for 13 November 2006.