Secretary, Department of Health and Aged Care v Vapor Kings Pty Ltd [2023] FCA 1297

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Health and Aged Care v Vapor Kings Pty Ltd [2023] FCA 1297 File number(s): NSD 559 of 2022

Judgment of: ABRAHAM J

Date of judgment: 27 October 2023

Catchwords: HEALTH LAW – 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 of the TG Act – where second respondent was involved in the first respondent's contraventions of s 42DLB for the purposes of s 42YC of the TG Act – where second respondent has contravened ss 42DLB and 54B of the TG Act – where parties agree on proposed declarations, injunctions, pecuniary penalties and costs orders PENALTY – amount of pecuniary penalty to be imposed pursuant to s 42Y of the TG Act – course of conduct principle –general and specific deterrence HELD – Court satisfied that declarations, injunctions pecuniary penalties and costs orders sought appropriate having regard to all relevant matters

Legislation: Crimes Act 1914 (Cth) Federal Court of Australia Act 1976 (Cth) Therapeutic Goods Act 1989 (Cth) Therapeutic Goods Regulations 1990 (Cth)

Cases cited: ASIC v Pegasus Leveraged Options Group Pty Ltd [2002] NSWSC 310; (2002) 41 ACSR 561 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) (No 2) [2018] FCA 163; (2018) 358 ALR 725 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450; (1997) 145 ALR 36 Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd (t/as Bet365) (No 2) [2016] FCA 698 Australian Competition and Consumer Commission v Meta Platforms Inc [2023] FCA 842 Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629; [2012] ATPR 42-402 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 Australian Securities & Investments Commission v Stone Assets Management Pty Ltd [2012] FCA 630; (2012) 205 FCR 120 Australian Securities and Investments Commission v Insurance Australia Limited, in the matter of Insurance Australia Limited [2023] FCA 724 Australian Securities and Investments Commission v MLC Nominees Pty Ltd [2020] FCA 1306; (2020) 147 ACSR 266 Australian Securities and Investments Commission v Monarch FX Group Pty Ltd, in the matter of Monarch FX Group Pty Ltd [2014] FCA 1387; (2014) 103 ACSR 453 Chief Executive Officer of the Australian Transaction Reports and Analysis Centre v Crown Melbourne Limited [2023] FCA 782 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Boggo Road Cross River Rail Case) [2023] FCA 507 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41-993 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 Secretary, Department of Health v Evolution Supplements Australia Pty Ltd (No 2) [2021] FCA 872 Secretary, Department of Health v Oxymed Australia Pty Ltd [2021] FCA 1518; (2021) 397 ALR 241 Secretary, Department of Health v Peptide Clinics Australia Pty Ltd [2019] FCA 1107; (2019) 137 ASCR 494 Seven Network Ltd v News Ltd [2009] FCAFC 166; (2009) 182 FCR 160 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49; (2021) 284 FCR 24