Swisse Vitamins Pty Ltd v The Complaints Resolution Panel [2012] FCA 536

Swisse Vitamins Pty Ltd v The Complaints Resolution Panel [2012] FCA 536

The Panel made reviewable decisions under reg 42ZCAI(1) and was required to accord procedural fairness. By making adverse findings and requests about particular advertising representations not specifically raised in the complaints, without giving Swisse notice under reg 42ZCAH and an opportunity to make submissions, the Panel denied Swisse natural justice within s 5(1)(a) of the ADJR Act and contravened reg 42ZCAH. Because the Panel's requests were framed so that the affected decisions were inextricably linked, including through the request concerning use of "you'll feel better on Swisse", all requests in paragraph 82 were set aside and the matter remitted for further consideration...

Jurisdiction
Australia
Judgment Date
25 May 2012
Procedural Posture
Application for Judicial Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) / Final Judgment on Application to Set Aside Decisions of the Complaints Resolution Panel
Outcome
Application allowed; the Panel's decisions made on 5 March 2012 were set aside, the matter was remitted to the Panel for further consideration according to law, and the respondent was ordered to pay the applicant's costs.
Legal Topics
['procedural Fairness' 'natural Justice' 'administrative Decisions (judicial Review) Act 1977 (cth)' 'therapeutic Goods Advertising Code 2007' 'complaints About Advertising of Therapeutic Goods' 'remittal']
['administrative Law' 'therapeutic Goods Advertising Regulation'] ['procedural Fairness' 'natural Justice' 'administrative Decisions (judicial Review) Act 1977 (cth)' 'therapeutic Goods Advertising Code 2007' 'complaints About Advertising of Therapeutic Goods' 'remittal']

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Procedural Posture

Application for Judicial Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) / Final Judgment on Application to Set Aside Decisions of the Complaints Resolution Panel

Legal Issues

  1. 1 ['Whether the Panel denied Swisse procedural fairness by making adverse findings and requests about matters not specifically raised in the complaints without giving Swisse notice and an opportunity to respond.' 'Whether the Panel failed to comply with the notice procedure in reg 42ZCAH of the Therapeutic Goods Regulations 1990 (Cth).' "Whether the Panel's requests under reg 42ZCAI(1) were reviewable decisions for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth)." "Whether the Panel's decisions should be set aside and remitted, and whether remittal should be to a differently constituted Panel."]

Ratio Decidendi

The Panel made reviewable decisions under reg 42ZCAI(1) and was required to accord procedural fairness. By making adverse findings and requests about particular advertising representations not specifically raised in the complaints, without giving Swisse notice under reg 42ZCAH and an opportunity to make submissions, the Panel denied Swisse natural justice within s 5(1)(a) of the ADJR Act and contravened reg 42ZCAH. Because the Panel's requests were framed so that the affected decisions were inextricably linked, including through the request concerning use of "you'll feel better on Swisse", all requests in paragraph 82 were set aside and the matter remitted for further consideration...

Court Disposition

Application allowed; the Panel's decisions made on 5 March 2012 were set aside, the matter was remitted to the Panel for further consideration according to law, and the respondent was ordered to pay the applicant's costs.

Orders

  • ["The Panel's decisions made on 5 March 2012 be set aside." 'The matter be remitted to the Panel for further consideration according to law.' "The respondent pay the applicant's costs of the application."]