Phytologic Pty Limited v the Secretary, Department of Health and Ageing, Commonwealth of Australia [2012] FCA 1407

FEDERAL COURT OF AUSTRALIA

Phytologic Pty Limited v the Secretary, Department of Health and Ageing, Commonwealth of Australia [2012] FCA 1407 Citation: Phytologic Pty Limited v the Secretary, Department of Health and Ageing, Commonwealth of Australia [2012] FCA 1407

Parties: PHYTOLOGIC PTY LIMITED v THE SECRETARY, DEPARTMENT OF HEALTH AND AGEING, COMMONWEALTH OF AUSTRALIA and DR KAYLENE RAYNES, DELEGATE OF THE SECRETARY, DEPARTMENT OF HEALTH AND AGEING, COMMONWEALTH OF AUSTRALIA

File number: NSD 1661 of 2012

Judge: COWDROY J

Date of judgment: 13 December 2012

Catchwords: ADMINISTRATIVE LAW – decision made under s 30(2) Therapeutic Goods Act 1989 to cancel registration of product – provision in Act for right of affected person to apply to Minister for review of cancellation decision – Delegate of the Minister determining date on which cancellation to take effect – cancellation date preceding the expiry of time for review under the Act – whether a provision should be read into the Act providing that cancellation cannot take place until review rights expire – whether the delegate's decision contravenes Administrative Decisions (Judicial Review) Act 1977 – whether decision is Wednesbury unreasonable – whether decision-maker required to have regard to commercial effect of decision – no requirement that appeal rights expire prior to decision taking effect – commercial considerations not required to be taken into account – decision does not contravene ADJR Act – decision is not Wednesbury unreasonable ADMINISTRATIVE LAW – Delegate deciding that she had no power to stay a cancellation date once determined – absence of express power in the Act – whether s 33(3) Acts Interpretation Act 1901 (Cth) provides such power – whether notice of cancellation is instrument of legislative character – whether there is a contrary intention in the Act – s 33(3) applies – relief refused on discretionary grounds