Secretary, Department of Health, Disability and Ageing v AG Therapeutics Pty Ltd [2026] FCA 333

This case sits at the overlap of regulated advertising and insolvency procedure. The underlying proceeding was brought by the Secretary, Department of Health, Disability and Ageing. It concerns alleged unlawful advertising of medicinal cannabis products through online media content and a related Facebook post. The judgment discussed here is not the final hearing of those allegations. It is an interlocutory decision about whether the case could continue against one respondent after that respondent entered voluntary liquidation.

The commercial arrangement described by the Court is important. The first respondent, AG Therapeutics Pty Ltd, was described as an online medicinal cannabis clinic in Australia. The second and third respondents operated news and or lifestyle websites. The fourth respondent was described as a company providing marketing services. According to the Secretary’s case, that fourth respondent facilitated the preparation and publication of the relevant media items under a Public Relations Campaign Agreement with the clinic. So the regulator’s focus was not limited to the clinic itself or the publishers. It also extended to the service provider allegedly involved in putting the campaign together.

The three media items identified in the judgment were a Body + Soul article titled “5 health conditions you didn’t know medical cannabis could help with”, a Mamamia article titled “Georgia takes CBD oil daily for her anxiety. Here’s what she wants people to know”, and a Facebook post on Mamamia’s Facebook page containing the title and a link to the Mamamia article. The Secretary alleged that these items referred to medical cannabis products, contained prohibited and or restricted representations, and also breached parts of the Therapeutic Goods Advertising Code.

Before the substantive allegations were decided, the fourth respondent entered voluntary liquidation. On or about 3 December 2025, its sole member resolved to wind up the company and appointed Joanne Keating of Worrells as liquidator. That changed the procedural position. Under s 500(2) of the Corporations Act 2001 (Cth), once a company has resolved to wind up voluntarily, a civil proceeding cannot be continued against it unless the Court gives leave. The Secretary therefore filed an interlocutory application on 13 February 2026 seeking permission to continue the case against the fourth respondent.

The Court summarised the Secretary’s allegations in enough detail to show why the application was treated seriously. The Secretary alleged contraventions of ss 42DLB(1) and 42DMA(1) of the Therapeutic Goods Act 1989 (Cth). The case against the fourth respondent was that it facilitated the preparation and publication of the three media items. The Secretary alleged that each item referred to “medical cannabis products” and contained “prohibited representations” and or “restricted representations” contrary to s 42DLB(1). The Secretary also alleged that the items contravened various sections of the Therapeutic Goods (Therapeutic Goods Advertising Code) Instrument 2021 (Cth), thereby contravening s 42DMA(1).

The Court also recorded the Secretary’s public health concerns. The Secretary contended that the alleged contraventions carried a significant risk to health and safety because the quality, safety and efficacy of the medicinal cannabis products had not undergone a full pre-market evaluation. The Secretary further contended there was a risk that people using such products might cease, delay or avoid conventional treatments and suffer adverse clinical outcomes, and a risk of adverse drug interactions with other prescribed treatments.

Those allegations mattered because they framed the proceeding as a regulatory enforcement case with protective and deterrent purposes, not simply a private dispute over money. The Secretary was seeking declarations and pecuniary penalties. That meant the Court had to consider not only the ordinary insolvency concern of protecting a company in liquidation from unnecessary litigation, but also the public interest in allowing a regulator to pursue relief said to support the public health and safety objectives of the therapeutic goods regime.

For businesses, the campaign structure is the practical takeaway from this part of the judgment. The alleged conduct involved editorial-style articles and a social media post, not just a conventional advertisement. The Court’s summary is a reminder that regulators may look across the whole campaign, including headlines, linked posts and the role of intermediaries who help prepare or place the content.

The legal issue was narrow but important. The Court had to decide whether to grant leave under s 500(2) of the Corporations Act so that the Secretary could continue the civil penalty proceeding against the fourth respondent after it entered voluntary liquidation. Section 500(2) says that after the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.

The judgment explains that the power to grant leave is discretionary and that each application must be approached on its own facts. The rationale for the restriction is that a company in liquidation would otherwise be exposed to a multiplicity of actions that are expensive, time-consuming and in some cases unnecessary. Ordinarily, a claimant may need to justify departing from the usual process of lodging a verified proof of debt with the liquidator.

But this was not an ordinary debt claim. The Secretary was seeking declarations and pecuniary penalties in a regulatory proceeding. The Court noted that where a regulator seeks leave to commence or continue civil penalty proceedings, public interest considerations may carry significant weight. The Court also accepted that the relief sought here could not be claimed by way of proof of debt. That point strongly favoured granting leave because the liquidation process was not an adequate substitute for the relief the Secretary was pursuing.

So the real question was whether the public interest in continuing the regulatory case outweighed the usual insolvency concerns. The Court had to consider the seriousness of the allegations, the protective purpose of the proceeding, the role of the fourth respondent compared with the other respondents, the possible prejudice to creditors, and whether conditions could be imposed to reduce that prejudice.

Younan J granted leave to continue the proceeding against the fourth respondent in liquidation. The Court gave several reasons. First, the claims were serious and raised matters of public importance because they alleged multiple contraventions of the Therapeutic Goods Act said to undermine the public health and safety objectives of that regime. The Court accepted there was a public interest in the proceeding continuing so that appropriate relief could be ordered and, if contraventions were ultimately established, the Court could mark its disapproval.

Second, the Court accepted that the fourth respondent, as a company providing marketing services, was in a unique position compared with the other respondents. The Court considered that relief against that company would have a general deterrence effect on persons providing advertising and marketing services in relation to therapeutic goods. The Court said the relief sought against the fourth respondent was more direct in its deterrent effect on those persons than relief sought against the other respondents.

Third, the Court accepted that the relief sought could not be claimed by way of proof of debt. The judgment described that as a significant factor in favour of granting leave. Fourth, although it was difficult to identify prejudice to creditors if leave were granted, the Court took comfort from the liquidator’s indication that she did not intend to actively contest the proceeding. The Court also accepted that the Secretary had an especial interest in ensuring compliance with, and accountability for, contraventions of the Therapeutic Goods Act. In any event, the Court considered that any prospect of prejudice to other creditors was outweighed by the public interest considerations.

Fifth, the Secretary was prepared to undertake not to enforce any financial or monetary orders obtained against the fourth respondent without first obtaining the Court’s leave. That undertaking gave the Court further comfort about possible prejudice to creditors. The application was also not contested. The liquidator did not oppose it, except as to costs, and the other respondents did not contest it.

The orders made on 26 March 2026 reflected that reasoning. The Court granted leave under s 500(2) to continue the proceeding against the fourth respondent in liquidation. It imposed a condition that if the Court later made any financial or monetary orders against that respondent, the Secretary could not seek to enforce those orders without first obtaining the Court’s leave. Costs of the application were ordered to be costs in the cause.

That means the Secretary was allowed to keep the fourth respondent in the case, but any later enforcement step against the company’s assets would still be controlled by the Court.

The first practical lesson is about role-based responsibility. If your business helps create, shape, place or amplify content for a regulated product, you may be treated as more than a passive intermediary. In this case, the Court accepted that a marketing-services company could be in a unique position and that proceedings against it could have a direct deterrent effect on others in the same line of work. For agencies, PR firms, freelance campaign managers, publishers and in-house marketing teams, that is a strong warning not to treat compliance as someone else’s problem.

The second lesson is about campaign format. The alleged material included online articles and a Facebook post. Businesses often focus compliance checks on obvious advertisements and overlook native content, editorial-style features, patient stories, social snippets and linked posts. This judgment is a reminder that regulators may look at the whole campaign architecture. A headline, article, teaser and social link can all matter if they form part of the same promotional activity.

The third lesson is about insolvency. Entering voluntary liquidation does not automatically end a regulator’s case. The Court may allow the proceeding to continue where there is a strong public interest, especially in civil penalty matters involving health, safety or consumer protection. That does not mean liquidation is irrelevant. It still affects procedure and may limit enforcement of any later monetary orders. But it is not a clean reset. Directors, founders and advisers should not assume that winding up a company will make a regulatory problem disappear.

The fourth lesson is about records and contracts. The judgment refers to a Public Relations Campaign Agreement and to the alleged facilitation of preparation and publication. In practice, campaign agreements, scopes of work, email approvals, briefing notes and publication instructions can become central evidence in showing who did what. If your business operates in a regulated sector, those documents should clearly allocate responsibilities for legal review, factual substantiation and final sign-off.

The substantive proceeding was commenced on 19 June 2025. The fourth respondent entered voluntary liquidation on or about 3 December 2025. The Secretary filed the interlocutory application for leave to continue the proceeding against that respondent on 13 February 2026. On 23 February 2026, the Court ordered that the application be determined on the papers. Judgment and orders were delivered on 26 March 2026.

This means the decision is a procedural step within a larger case. It does not resolve the underlying allegations about the advertising of medicinal cannabis products. Readers should therefore treat the allegations described in the judgment as allegations only unless and until determined in later proceedings.

This page is based on the Federal Court of Australia judgment in Secretary, Department of Health, Disability and Ageing v AG Therapeutics Pty Ltd [2026] FCA 333, delivered by Younan J on 26 March 2026. The judgment concerns an application for leave under s 500(2) of the Corporations Act 2001 (Cth) to continue proceedings against the fourth respondent in liquidation.

The public extract used here identifies the first, second and third respondents in the orders, but does not set out the fourth respondent’s name. For that reason, this page refers to that party as the fourth respondent rather than naming it. The judgment is also procedural only, so it should not be read as a final determination of the alleged Therapeutic Goods Act contraventions.