M House Pty Ltd v Secretary, Department of Health and Aged Care

M House Pty Ltd sought judicial review of a decision by the Secretary of the Department of Health and Aged Care to release information about the Applicant’s therapeutic goods on the Therapeutic Goods Administration's website. The Applicant argued that the decision was not authorised under s 61(5C) of the Therapeutic Goods Act 1989 (Cth). The Applicant further submitted that, if the decision was authorised, it was unreasonable.

The Applicant pressed two grounds for review of the decision. The primary ground pressed by the Applicant was that the decision was not authorised by s 61(5C) of the Act. If the Court determined that the decision was authorised by s 61(5C) of the Act, the Applicant alternatively contended that the decision was an unreasonable exercise of power under s 61(5C) of the Act. The Applicant argued that the release of information was not authorised because the information was obtained from sampling and testing undertaken expressly not in compliance with Therapeutic Goods Regulations 1990 (Cth). The Respondent asserted a non-statutory capacity to undertake sampling and testing of therapeutic goods. The Court found that the decision was not authorised by s 61(5C) of the Act because the information was obtained from sampling and testing undertaken expressly not in compliance with Therapeutic Goods Regulations 1990 (Cth). The Court concluded that the release of information was not authorised under s 61(5C) of the Act. The Court did not need to consider the alternative ground of unreasonableness. The Applicant’s application for review was therefore successful. The Court ordered that within seven days, the parties confer and file proposed agreed orders giving effect to the reasons of the Court. If the parties were unable to agree proposed orders, each party was to file separate orders and written submissions in support of their proposed orders of no more than two pages within seven days. The final orders of the Court would be determined on the papers.