Commonwealth of Australia v Sanofi-Aventis [2015] FCA 384

FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Sanofi-Aventis [2015] FCA 384 Citation: Commonwealth of Australia v Sanofi-Aventis [2015] FCA 384

Parties: COMMONWEALTH OF AUSTRALIA v SANOFI (FORMERLY SANOFI-AVENTIS), SANOFI-AVENTIS US LLC and BRISTOL-MYERS SQUIBB INVESTCO LLC

File number: NSD 1639 of 2007

Judge: NICHOLAS J

Date of judgment: 24 April 2015

Catchwords: PRACTICE AND PROCEDURE – whether respondents to claim on undertaking as to damages should be given leave to amend points of defence – whether respondents' proposed defences reasonably arguable EQUITY – third party claim by Commonwealth on undertaking as to damages given in support of interlocutory injunction restraining alleged patent infringement – where patent later held invalid – where applicants seek to defend claim on basis that judgment holding patent invalid wrongly decided and that it would therefore be inequitable to permit recovery pursuant to undertaking as to damages – leave to amend to raise such defence refused EQUITY – third party claim on undertaking as to damages – where applicants seek to defend such claim on basis of delay – whether defence based upon failure of Commonwealth to notify possibility of such claim prior to disposition of application for special leave to appeal reasonably arguable – leave to amend to raise such defence refused – whether defence based upon delay occasioning prejudice arising out of loss of evidence sufficiently pleaded – leave to amend to raise such defence granted on terms

Legislation: National Health Act 1953 (Cth) Federal Court of Australia Act 1976 (Cth) s 31A Copyright Act 1968 (Cth) s 44BA Therapeutic Goods Legislation Amendment (Copyright) Act 2011 (Cth) Court Procedures Rules 2006 (ACT) r 21