Hi.

I have to write a summary on natural justice for glaxosmithkline Aust P/L v Anderson [2003] FCA 617. The assignment requires me to discuss the application of the natural justice rules. I have attached the link to the course case. Can you please review the case and read my summarized version and let me know what information I need to include in my summary.

https://jade.io/j/?a=outline&id=107238

My summary

The case arose between Glaxosmithine (GSK) and the Pharmaceutical Benefits Advisory Committee (PBAC) when PBAC recommended to the Minister, under the National Health Act 1953, section 101(3), to introduce restrictions to the current subsidised pack. One change was to vary the current subsidised pack size on the Pharmaceutical Benefits Scheme (PBS) from 120 tablets to 30 tablets for a drug Zyban (Bupropion hydrochloride). Zyban is a short-term treatment for people who want to stop smoking.¹ The course of the treatment requires the patient to complete the full 120 pack of tablets.

GSK deemed it had been denied procedural fairness (ADJR Act section 5) by the Pharmaceutical Benefits Advisory Committee (PBAC) and contends that the committee did not disclose adverse information to them during the deliberations and to which the decision was made.

The following laws governed this case:

1.Administrative Decisions (Judicial Review) Act 1977 Section 5:

(1)A person who is aggrieved by adecision to which this Act appliesthat is made after the commencement of this Act may apply tothe Federal Courtor theFederal Circuit Courtfor anorder of reviewin respect of the decision on any one or more of the following grounds:

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(h)that there was no evidence or other material to justify the making of the decision;

2.National Health Act 1953, Part VII,88A, 101(3), 101(3C):

Part VII 88A:

"Where a pharmaceutical benefit is declared, in a declaration made under subsection 85(2), to be a relevant pharmaceutical benefit for the purposes of this section, the writing of a prescription for the supply of the benefit is authorised under this Part only in circumstances specified in the declaration pursuant to subsection 85(2A)."

Part VII 101(3):

"The Pharmaceutical Benefits Advisory Committee shall make recommendations to the Minister from time to time as to the drugs and medicinal preparations which it considers should be made available as pharmaceutical benefits under this Part ..."

Part VII 101 (3C)

Where the Committee is of the opinion that a drug or medicinal preparation, or a class of drugs and medicinal preparations, should be made available as pharmaceutical benefits under this Part, but only in certain circumstances, the Committee shall, in its recommendation under subsection (3), specify those circumstances.

3.Acts Interpretation Act 1901 section 33, 46:

"Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument."

Judge Ryan assessed under procedural fairness whether GSK:

1.understood the case and had adequate opportunity to make their argument

2.Whether an onus was placed on GSK.

To point 1, the judge did not find any factual information was withheld from GSK to provide comment to. For point 2, the judge discern that the PBACs process was "unexceptionable" but no onus was placed on GSK.

The case was dismissed as GSK was provided the opportunity to provide evidence in the course of the deliberations with PBAC and therefore was not denied procedural fairness. Under the NH Act Part VII section 101(3C) PBAC had the right to exercise its power to vary its recommendation.