Pfizer Pty Ltd v Birkett [2001] FCA 828

Pfizer Pty Ltd v Birkett [2001] FCA 828

The PBAC was entitled to take into account the anticipated overall cost to government and potential for non-therapeutic use as legitimate considerations under s 101(3) and (3A) of the National Health Act 1953 (Cth). However, procedural fairness required the PBAC to expressly inform Pfizer that it intended to rely on actual usage data of alprostadil (another drug) which was adverse to Pfizer, and give Pfizer an opportunity to respond. Failure to do so denied Pfizer natural justice and invalidated the PBAC's decision not to recommend Viagra (sildenafil) as a pharmaceutical benefit.

Parties
Appellant: Pfizer Pty Ltd; Respondents: Donald John Birkett & Ors
Jurisdiction
Australia
Judgment Date
02 July 2001
Procedural Posture
Appeal From a Judgment of the Federal Court of Australia (judicial Review) / Full Court on Appeal
Outcome
Appeal allowed
Legal Topics
Judicial Review, Procedural Fairness (natural Justice), Pharmaceutical Benefits Scheme, Statutory Interpretation, Irrelevant and Relevant Considerations in Administrative Decision Making
Administrative Law Health Law Judicial Review Procedural Fairness (natural Justice) Pharmaceutical Benefits Scheme Statutory Interpretation Irrelevant and Relevant Considerations in Administrative Decision Making

Case Brief

Summary, issues, holding and outcome

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Parties

Pfizer Pty Ltd

Appellant

Donald John Birkett & Ors

Respondents

Procedural Posture

Appeal From a Judgment of the Federal Court of Australia (judicial Review) / Full Court on Appeal

Legal Issues

  1. 1 Whether the Pharmaceutical Benefits Advisory Committee (PBAC) could lawfully take into account the overall cost to government of listing a drug as a pharmaceutical benefit under the National Health Act 1953 (Cth)
  2. 2 Whether PBAC was restricted to considering medical factors only
  3. 3 Whether PBAC failed to accord procedural fairness/natural justice to Pfizer by not disclosing certain information or adverse material

Ratio Decidendi

The PBAC was entitled to take into account the anticipated overall cost to government and potential for non-therapeutic use as legitimate considerations under s 101(3) and (3A) of the National Health Act 1953 (Cth). However, procedural fairness required the PBAC to expressly inform Pfizer that it intended to rely on actual usage data of alprostadil (another drug) which was adverse to Pfizer, and give Pfizer an opportunity to respond. Failure to do so denied Pfizer natural justice and invalidated the PBAC's decision not to recommend Viagra (sildenafil) as a pharmaceutical benefit.

Court Disposition

Appeal allowed

Orders

  • The appeal be allowed.
  • The orders of Mathews J made on 20 March 2000 be set aside.