Australia

This is the last in a series of decisions relating to an advertisement published by the Tobacco Institute of Australia (TIA). The advertisement, which ran in several newspapers on July 1, 1986, stated that "(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."

At first instance, Morling J upheld the plaintiff's claim, finding that the TIA's advertisement was misleading and deceptive in breach of s52 of the Trade Practices Act 1974. His Honour found there was compelling scientific evidence that cigarette smoking causes lung cancer in non-smokers, and therefore that the statement in the advertisement was erroneous. He further found that the statement that there was little evidence and nothing which proves scientifically that cigarette smoke causes disease in non-smokers was demonstrably false in 1986 insofar as it applied to respiratory disease in children. Morling J also found that the statement was misleading and deceptive insofar as it applied to asthma.

The TIA appealed the decision, including appealing Morling J's findings of fact. The Court of Appeal upheld Morling J's findings of fact, but set aside various injunctions His Honour had ordered.

In this final decision the Court of Appeal considered the form of relief that was appropriate to the TIA's breach of the Act. It made various declarations (in lieu of injunctions). The Court also varied the costs order, ordering that the TIA pay three quarters of the plaintiff's costs at first instance and one half of its costs of the appeal (Morling J had earlier made an order for indemnity costs).

For the previous Court of Appeal decision, see: Re Tobacco Institute of Australia Limited v. Australian Federation of Consumer Organisations Inc [1992] FCA 630 (17 December 1992).

For Morling J's original decision, see: Re Australian Federation of Consumer Organisations Inc v. Tobacco Institute of Australia Limited [1991] FCA 137 (15 April 1991).