Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Secretary, Department of Health v Evolution Supplements Australia Pty Ltd (No 2) [2021] FCA 872 File number: NSD 254 of 2020
Judgment of: BURLEY J
Date of judgment: 29 July 2021
Catchwords: HEALTH LAW – where respondents have failed to participate in proceedings – where respondents advertised therapeutic goods that did not comply with the Therapeutic Goods Act 1989 (Cth) (TG Act) – where first respondent has contravened s 42DLB(1) of the TG Act – where the second respondent has contravened ss 42DX and 54B(3) of the TG Act PENALTY – amount of pecuniary penalty to be imposed pursuant to s 42Y of the TG Act – principles relevant to imposition of penalty
Legislation: Corporations Act 2001 (Cth) s 601AB(1), s 601AB(1A) Crimes Act 1914 (Cth) s 4AA Evidence Act 1995 (Cth) s 50, s 140 Therapeutic Goods Act 1989 (Cth) s 3(1), s 4, s 19D, s 42DLB, s 42DLB(1), s 42DLB(7), s 42DLB(9), s 42DV, s 42DX, s 42Y(1), s 42Y(3), s 42YA, s 42YE, s 54B(3) Therapeutic Goods Regulations 1990 (Cth) clause 7(i)
Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2010] FCA 929 Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159; 258 FCR 312 Australian Competition and Consumer Commission v EDirect Pty Ltd (in liq) [2012] FCA 976; 206 FCR 160 Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254; 215 ALR 281 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 Australian Competition and Consumer Commission v We Buy Houses Pty Ltd [2017] FCA 915 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 2622 FCR 243 Briginshaw v Briginshaw (1938) 60 CLR 336 Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1 Johnson v R [2004] HCA 15; 205 ALR 346 Leydon v Forrest (1980) 23 SASR 364 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Secretary, Department of Health and Ageing v Export Corporation (Australia) Pty Ltd [2012] FCA 42; 288 ALR 702 Secretary, Department of Health v Evolution Supplements Australia Pty Ltd [2021] FCA 74 Secretary, Department of Health v Peptide Clinics Australia Pty Ltd [2019] FCA 1107 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 Trade Practices Commission v TNT Australia Pty Ltd [1995] FCA 13; ATPR ¶41-375
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