Cauvin v. Philip Morris Limited & Ors

The plaintiff alleged that the defendant companies colluded to engage in conduct to promote the benefits and pleasures of smoking and to deny or minimise the risks associated with smoking, including the likelihood of contracting smoking-related disease, and the risk of becoming addicted to nicotine. The plaintiff alleged that the defendants had conspired to engage in misleading or deceptive conduct in contravention of the Trade Practices Act and the various state Fair Trading Acts, and that the defendants' conduct was unconscionable. (Note that the plaintiff's pleadings in this matter drew on the pleadings in the earlier cases Tobacco Control Coalition Inc v Philip Morris (Australia) Ltd & Ors [2000] FCA 1004 and Philip Morris (Australia) Ltd v Nixon [2000] FCA 229; 170 ALR 487). The plaintiff alleged that the defendants and their overseas counterparts had engaged in an "international conspiracy".

This case was the hearing of the defendants' claim that the plaintiff's statement of claim should be struck out, and, as against Imperial Tobacco, dismissed.

The plaintiff had sought to have each of the defendant companies represent their overseas counterparts. The defendants argued, and the Court agreed, that the plaintiff had not alleged facts sufficient to explain why the defendant companies had the same interest in the proceedings as the overseas companies they were said to represent. Further, the purpose of such representative proceedings was to avoid the inconvenience of having numerous parties to proceedings. But, the overseas companies were not so numerous that they could not simply be joined (note: the plaintiff subsequently sought leave to join the overseas companies as additional defendants, which leave was declined (see: Cauvin v Philip Morris Limited and Ors [2005] NSWSC 640)).

The defendants attacked large parts of the statement of claim which they said did not plead sufficient facts to enable them to understand the case put against them and to prepare their defence. The Court agreed with the defendants in respect of several parts of the pleading, and therefore struck those parts out as having a tendency to cause prejudice, embarrassment and delay in the proceedings. The Court rejected the defendants' contention that the statement of claim should be struck out as a whole, because the plaintiff's claim was not manifestly untenable.

Similarly, the Court rejected Imperial Tobacco's application to have the claim against it dismissed. The Court was not of the view that the claim was so obviously untenable that it could not possibly succeed.


Cauvin v. Philip Morris Limited & Ors [2003] NSWSC 631 (1 August 2003)

  • Australia
  • Aug 1, 2003
  • New South Wales Supreme Court


Plaintiff Myriam Cauvin


  • British American Tobacco Australasia Limited
  • British American tobacco Australia Ltd.
  • British American Tobacco Australia Services Limited
  • Imperial Tobacco Australia Ltd.
  • Philip Morris (Australia) Limited
  • Philip Morris Limited
  • WD & HO Wills Holdings Ltd.

Legislation Cited

Civil Liability Amendment (Personal Responsibility) Act 2002

Fair Trading Act 1987

Trade Practices Act 1974

Trade Practices Amendment Act 1977

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product