FEDERAL COURT OF AUSTRALIA Secretary, Department of Health and Ageing v Export Corporation (Australia) Pty Ltd (No 2) [2012] FCA 463 Citation: Secretary, Department of Health and Ageing v Export Corporation (Australia) Pty Ltd (No 2) [2012] FCA 463 Parties: SECRETARY, DEPARTMENT OF HEALTH AND AGEING v EXPORT CORPORATION (AUSTRALIA) PTY LTD ACN 009 441 632 File number: ACD 38 of 2009 Judge: PERRAM J Date of judgment: 8 May 2012 Legislation: Therapeutic Goods Act 1989 (Cth) s 19D(1)(a)(i) Cases cited: Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56 Secretary, Department of Health and Ageing v Export Corporation (Australia) Pty Ltd [2012] FCA 42 Date of hearing: 28 June 2011 Place: Sydney (Heard in Canberra) Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 6 Counsel for the Applicant: Mr TM Howe QC, Mr TM Begbie Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr AJ Payne, Mr SJ Free Solicitor for the Respondent: McLachlan Thorpe Partners IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ACD 38 of 2009 BETWEEN: SECRETARY, DEPARTMENT OF HEALTH AND AGEING Applicant AND: EXPORT CORPORATION (AUSTRALIA) PTY LTD ACN 009 441 632 Respondent JUDGE: PERRAM J DATE OF ORDER: 8 May 2012 WHERE MADE: SYDNEY (HEARD IN CANBERRA) THE COURT DECLARES THAT: 1. In the period 1 January 2007 to 2 October 2009, Export Corporation contravened section 19D(1)(a)(iv) of the Therapeutic Goods Act 1989 (Cth) by supplying in Australia therapeutic goods for use in humans as specified in Schedule B to the Further Amended Application, in circumstances where the therapeutic goods were not listed on the Australian Register of Therapeutic Goods and none of the subparagraphs in section 19D(1)(b) applied. THE COURT ORDERS THAT: 2. All orders made in this matter may be entered forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ACD 38 of 2009 BETWEEN: SECRETARY, DEPARTMENT OF HEALTH AND AGEING Applicant AND: EXPORT CORPORATION (AUSTRALIA) PTY LTD ACN 009 441 632 Respondent JUDGE: PERRAM J DATE: 8 May 2012 PLACE: sydney (heard in CANBERRA) REASONS FOR JUDGMENT 1 I gave judgment in this matter on 3 February 2012: Secretary, Department of Health and Ageing v Export Corporation (Australia) Pty Ltd [2012] FCA 42. On 24 January 2012, I made orders to give effect to the conclusions therein. 2 In the judgment, I concluded that Export Corporation should pay pecuniary penalties to the Commonwealth in the amount of $3,127,150. These penalties were imposed on account of 80 contraventions of s 19D(1)(a)(i) of the Therapeutic Goods Act 1989 (Cth) engaged in by Export Corporation in the period 19 January 2007 to 9 May 2008 (which were admitted to by Export Corporation). 3 In addition to civil penalties, my judgment also considered the declarations sought by the Secretary. I addressed this matter at [84]-[86] as follows: 84. The Secretary also sought the making of two declarations in the following forms: 1. A declaration that in the period 19 January 2007 to 9 May 2008 [Export Corporation] committed 80 contraventions of section 19D(1)(a)(i) of [the Act] by importing into Australia therapeutic goods for use in humans as specified in Schedule A to the Further Amended Application, in circumstances where the therapeutic goods were not listed on the Australian Register of Therapeutic Goods and none of the subparagraphs in section 19D(1)(b) applied. … 3. A declaration that in the period 1 January 2007 to 2 October 2009 [Export Corporation] contravened section 19D(1)(a)(iv) of [the Act] by supplying in Australia therapeutic goods for use in humans as specified in Schedule B to the Further Amended Application, in circumstances where the therapeutic goods were not listed on the Australian Register of Therapeutic Goods and none of the subparagraphs in section 19D(1)(b) applied. 85. Export Corporation consented to the second of these but not to the first. In regard to it, Export Corporation submitted that the declaration did not reflect the pleading. It does, however, reflect my conclusions. 86. In Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) (2011) 279 ALR 609 I concluded that the Full Court's decision in BMI v Federated Clerks Union of Australia (1983) 6 IR 416 bound me not to make declarations by consent. I also expressed the view, on that occasion, that this should not be the case and that BMI was wrongly decided. Since then two members of this Court have concluded that BMI does not have that effect: Australian Competition and Consumer Commission v Willesee Healthcare Pty Ltd (No 2) [2011] FCA 752 per Dodds-Streeton J; Australian Competition and Consumer Commission v Sampson [2011] ATPR 42-374 per Tracey J. MSY (No 2) is presently the subject of a reserved decision in the Full Court. What I propose to do is to indicate that if I have the power to make the second declaration sought by consent I would be content to make it. I will make the other orders, including the first declaration, which are necessary to dispose of the rest of the case but direct that those orders not be taken out. On the delivery by the Full Court of its decision in respect of MSY (No 2) I will finalise the matter. 4 The Full Court has now delivered its judgment in the appeal from MSY (No 2): Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56. The Full Court indicated that there was power to make declarations by consent and that to the extent that BMI suggested that this could not be done without a party actually opposing the relief 'it evidences a misunderstanding of the explanation given by Lord Dunedin in his speech in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd, adopted by Gibbs J in Forster v Jododex': at [30]. 5 Given this conclusion, I will make the declaration that was consented to by both parties, namely that: In the period 1 January 2007 to 2 October 2009, Export Corporation contravened section 19D(1)(a)(iv) of the Therapeutic Goods Act 1989 (Cth) by supplying in Australia therapeutic goods for use in humans as specified in Schedule B to the Further Amended Application, in circumstances where the therapeutic goods were not listed on the Australian Register of Therapeutic Goods and none of the subparagraphs in section 19D(1)(b) applied. 6 The orders may be taken out. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 8 May 2012