69What constitutes a reasonable proposal for compensation

#### 69 What constitutes a reasonable proposal for compensation (1) A proposal as to the terms of the compensation is taken to be reasonable if, and only if, the arbitrator is satisfied that: (a) it provides for an amount or amounts to be paid by the secondary holder to a primary holder; and (b) the amount or amounts represent a fair proportion of: (i) the amount of the cost incurred by that primary holder in obtaining the protected information excluding any part of that cost that relates to information that was obtained from a Government or public authority, whether in Australia or elsewhere, or was otherwise publicly available; or (ii) if the protected information was obtained by that primary holder before the APVMA required that holder to give that information to the APVMA—a lesser amount than the amount worked out under subparagraph (i) that is appropriate having regard to the period between the time when that information was so obtained and the time when it was given to the APVMA. (2) The question as to what is a fair proportion of an amount referred to in subparagraph (1)(b)(i) or (ii) is to be determined by the arbitrator having regard to any matters that are prescribed by the regulations and any other matters that he or she considers appropriate. (3) For the purposes of subsection (1), the amount of the cost incurred by a primary holder in obtaining protected information comprises: (a) all relevant costs incurred by that primary holder in obtaining that information (taking into account the practices generally engaged in by persons conducting tests or laboratory experiments of the kinds used to obtain information of the kind concerned) and including, without limiting the above: (i) the direct and indirect costs of planning, conducting, and analysing the results of, tests and laboratory experiments and giving the information to the APVMA; and (ii) the cost of repeating, or redoing with modifications, tests or laboratory experiments if it was appropriate to repeat or redo them; and (iii) if the tests or laboratory experiments were conducted by the use of equipment of that primary holder—depreciation on that equipment; and (iv) any other prescribed costs; and (b) a reasonable rate of interest on the amount worked out under paragraph (a). (4) The reference in paragraph (3)(a) to all relevant costs incurred by a primary holder includes, if the primary holder is a body corporate, an appropriate portion of any relevant costs incurred by another body corporate that is related to the primary holder. (5) The question whether 2 bodies corporate are related to each other is to be determined in the same way as for the purposes of the Corporations Act 2001.