Posted by Michael Wonder on 30 Apr 2020
Commonwealth fails in its claim for compensation for delayed PBS listing of generic clopidogrel
29 April 2020 - The decision highlights the inherent difficulty Courts face in cases involving claims on the Usual Undertaking.
The Federal Court of Australia yesterday released its long-awaited decision concerning the Commonwealth's claim for compensation on the usual undertaking as to damages (Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) (No 5) [2020] FCA 543 28 April 2020).
The Court held that the Commonwealth was not entitled to compensation for the loss it suffered due to the delay in listing Apotex’s generic clopidogrel product on the PBS due to the grant of a preliminary injunction, which was subsequently overturned. The Court held that the evidence did not establish that Apotex would have sought and obtained PBS listing of its products by the proposed date had the injunction not been granted by the Court.
