Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Secretary, Department of Health v Oxymed Australia Pty Ltd [2021] FCA 1518 File number(s): VID 558 of 2020
Judgment of: ROFE J
Date of judgment: 3 December 2021
Catchwords: HEALTH LAW – where respondents contravened s 42DLB(1) of the Therapeutic Goods Act 1989 (Cth) by advertising unregistered medical devices and making prohibited and restricted representations on the internet – where conduct was accepted by respondents but number of contraventions in dispute – whether conduct considered a continuous offence PENALTY - amount of pecuniary penalty to be imposed pursuant to s 42Y of Therapeutic Goods Act 1989 (Cth) – course of conduct principle – totality principle – general and specific deterrence
Legislation: Crimes Act 1914 (Cth) Federal Court of Australia Act 1976 (Cth) Therapeutic Goods Act 1989 (Cth) Therapeutic Goods Advertising Code (No 2) 2018 (Cth) Therapeutic Goods Regulations 1990 (Cth) Trade Practices Act 1974 (Cth) Health Professions Registration Act 2005 (Vic)
Cases cited: Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 Australian Competition and Consumer Commission v Bupa Aged Care Australia Pty Ltd [2020] FCA 602 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281 Australian Competition and Consumer Commission v Lorna Jane Pty Ltd [2021] FCA 852 Australian Competition and Consumer Commission v Telstra Corporation Limited [2010] FCA 790 Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 5) [2013] FCA 1109 Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618 Australian Securities and Investments Commission v Westpac [2019] FCA 2147 Chiropractic Board of Australia v Hooper (Review and Regulation) [2013] VCAT 878 Chiropractic Board of Australia v Hooper (Review and Regulation) [2013] VCAT 1346 Director of Consumer Affairs Victoria v Gibson (No 3) [2017] FCA 1148 Ex parte Barelli's Bakeries Pty Ltd [1965] VR 615 Markarian v The Queen (2005) 228 CLR 357 Mornington Inn v Jordan (2008) 247 ALR 714 NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177 Secretary, Department of Health v Evolution Supplements Australia Pty Ltd (No 2) [2021] FCA 872 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) 287 ALR 249 TPG Internet Pty Ltd v Australian Competition and Consumer Commission (2012) 210 FCR 277 Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 Wong v The Queen (2001) 207 CLR 584
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