TOBACCO CONTROL LAWS

Cauvin v. Philip Morris Limited & Ors

The plaintiff alleged that various cigarette manufacturers and distributors in Australia had, since January 1975, conspired together to engage in conduct that was misleading or deceptive or likely to mislead or deceive and/or was unconscionable in contravention of the Trade Practices Act. In this case, the plaintiff sought leave to file a further amended statement of claim and to join various international organisations to the proceeding on the basis that they procured their Australian-based related companies to engage in the contravening conduct. The alleged object of the conduct was to promote a false controversy about the relationship between smoking and disease, as part of an "international conspiracy".

Judge Bell found that the plaintiff had failed to articulate a tenable case so as to attach liability to the foreign companies. He therefore rejected the plaintiff's application to join them to the proceeding. His Honour also struck out various parts of the pleading relating to the alleged "international conspiracy" because insufficient facts had been pleaded to support it.

This decision followed a number of earlier procedural decisions relating to defects in the plaintiff's statement of claim (see e.g. Cauvin v Philip Morris Limited [2003] NSWSC 631, where substantial parts of an earlier version of the statement of claim were struck out.). At the time of this decision the plaintiff had served eleven different statements of claim. The defendants therefore argued that the point had been reached where the litigation should be brought to an end. Judge Bell declined to terminate the litigation, affording the plaintiff four weeks to file a further amended statement of claim consistent with these reasons.

(See, further: Cauvin v Philip Morris Limited & Ors [2006] NSWSC 185).

Cauvin v. Philip Morris Limited and Ors [2005] NSWSC 640 (26 August 2005)

  • Australia
  • Aug 26, 2005
  • New South Wales Supreme Court
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Parties

Plaintiff Myriam Cauvin

Defendant

  • British American Tobacco Australasia Limited
  • British American Tobacco Australia Services Limited
  • Imperial Tobacco Australia Limited
  • Philip Morris (Australia) Limited
  • Philip Morris Limited
  • W.D. & H.O. Wills Holdings Limited

Legislation Cited

Trade Practices Act 1974

Trade Practices Amendment Act 1977

Trade Practices Revision Act 1986

Related Documents

None

Type of Litigation

Personal Injury
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.

Tobacco Control Topics

Liability
Measures dealing with criminal and civil liability, including compensation. (See FCTC Art. 19)

Substantive Issues

Procedural Defect
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.

Type of Tobacco Product

None

"The defendants point to the circumstance that the plaintiff had now served eleven different statements of claim upon them. In their submission, the point is being reached where the Court should consider terminating the litigation. I acknowledge the force of this contention but I am not persuaded that that point has yet been reached. Shorn of the ambitious endeavour to plead her claim by reference to an unidentified group of persons and by reference to the acts of foreign companies engaging in an international conspiracy, the plaintiff seeks to articulate a case that the defendants have contravened the statutory norm provided by s 52 of the TPA and that she has suffered loss thereby for which she is entitled to compensation. She should be afforded a further opportunity to do so."
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