Secretary, Department of Health v Evolution Supplements Australia Pty Ltd

In the matter of Secretary, Department of Health v Evolution Supplements Australia Pty Ltd, the Federal Court was tasked with determining whether to grant default judgment against the respondents for their failure to comply with court orders and participate in the proceedings. The Secretary, Department of Health had brought an application for default judgment under rule 5.23 of the Federal Court Rules 2011 (Cth), alleging that the respondents had contravened civil penalty provisions of the Therapeutic Goods Act 1989 (Cth). The application was for relief in the form of declarations and injunctions.

The court needed to determine if the respondents were in default and if granting the application would be just. The Secretary's affidavits provided evidence that the respondents had failed to serve any defences, notify their agreement or disagreement with the proposed statement of agreed facts, file any notice of address for service, and appear at several case management hearings. The respondents had also failed to defend the proceedings with due diligence within FCR 5.22. The court found that the respondents were in default and that granting the application would be just, as there was no confidence that the respondents intended to participate in the proceedings, and public interest and safety considerations warranted the expeditious consideration of such claims.

The court granted the application for default judgment. The First and Second Respondents were restrained from advertising or causing to be advertised therapeutic goods that were not entered in the Australian Register of Therapeutic Goods and substances or goods containing substances included in Schedule 4 of the current Poisons Standard. The respondents were also ordered to pay the Applicant’s costs of and incidental to the proceedings, and the matter was listed for a case management hearing to determine the quantum of pecuniary penalties sought.