Australia

In a previous decision, Morling J upheld the plaintiff's claim that a newspaper advertisement published by the Tobacco Institute of Australia (TIA) was misleading and deceptive in breach of the Trade Practices Act. Morling J had decided that the following statements in the advertisement were demonstrably false: "(T)here is little evidence and nothing which proves scientifically that cigarette smoking causes disease in non-smokers;"  and "The London Times reported findings from the Institute of Cancer Research in Surrey, England ... that 'passive smoking' for life-long non-smokers causes no significant increase in the risk of lung cancer, bronchitis or heart disease ... The Institute's conclusions are based on a wealth of statistical detail from a study involving 12,000 people."

Morling J ordered the TIA to pay the plaintiff's costs on an indemnity basis.

The TIA appealed the decision to the Full Court. Pending the hearing of that appeal, the plaintiff sought an order that the TIA pay its costs (i.e. a departure from the ordinary rule that there be a stay of the costs order pending the hearing of the appeal). The plaintiff applied for this order because it said that otherwise it would not have sufficient funds to pay its lawyers for the appeal.

Although Morling J expressed sympathy for the plaintiff's circumstances, he did not think it was appropriate to make the order sought.

For the later appeal decision, see: Re Tobacco Institute of Australia v Australian Federation of Consumer Organisations Inc [1993] FCA 83 (10 March 1993). For the earlier decision, see Re Australian Federation of Consumer Organisations Inc v the Tobacco Institute of Australia Limited [1991] FCA 17 (7 February 1991).