This was the hearing of various applications by the defendant companies to strike out portions of the plaintiff's statement of claim. (Note that the judge had already struck out paragraphs of the statement of claim in an earlier judgment: Cauvin v Philip Morris Limited & Ors [2003] NSWSC 631).
The plaintiff alleged that the defendants knew that smoking caused an increased likelihood of contracting smoking related disease and nonetheless promoted the benefits of smoking and denied or minimized the risks of smoking. The plaintiff alleged that this conduct was misleading or deceptive in contravention of the Trade Practices Act and the various state Fair Trading Acts. The plaintiff further alleged that as a result of the defendants' contravening conduct "a great number of persons, including the plaintiff and other persons" had started/continued/failed to quit smoking and had suffered loss and damage as a result.
The defendant companies argued that it was not permissible for the plaintiff to seek compensatory orders on behalf of persons who were not party to the proceedings. Bell J agreed, striking out those parts of the claim that related to "other persons". Bell J observed that, as her claim was pleaded, the plaintiff had potentially claimed relief on behalf of every member of the Australian population.
(See further: Cauvin v. Philip Morris Limited & Ors [2005] NSWSC 640 (26 August 2005)).
Cauvin v. Philip Morris Limited & Ors [2004] NSWSC 644 (24 September 2004)
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.
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
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"Fourth, it is said that if the Plaintiff and those she seeks to represent succeed in their claims it will be far more convenient to recover payments from the six Wholesalers rather than from the 25,000 Retailers. The strength of that submission depends, to a large extent, on the strength of the Plaintiff’s case against the Wholesalers. As I have said, I find it hard to see how the Plaintiff can succeed against the Wholesalers. The Plaintiff’s claims against the Retailers are in a different category and I do not need to consider them for the purposes of this application. However, what the Plaintiff seems to be seeking is that the Wholesalers be prevented from discharging their obligations to the Retailers so that the case against the Retailers may more conveniently be pursued. In my opinion, this is not a legitimate reason to grant the injunction. If the Plaintiff has a sufficient case against the Retailers, she must pursue that case directly against the Retailers, for better or for worse."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
This was the hearing of various applications by the defendant companies to strike out portions of the plaintiff's statement of claim. (Note that the judge had already struck out paragraphs of the statement of claim in an earlier judgment: Cauvin v Philip Morris Limited & Ors [2003] NSWSC 631).
The plaintiff alleged that the defendants knew that smoking caused an increased likelihood of contracting smoking related disease and nonetheless promoted the benefits of smoking and denied or minimized the risks of smoking. The plaintiff alleged that this conduct was misleading or deceptive in contravention of the Trade Practices Act and the various state Fair Trading Acts. The plaintiff further alleged that as a result of the defendants' contravening conduct "a great number of persons, including the plaintiff and other persons" had started/continued/failed to quit smoking and had suffered loss and damage as a result.
The defendant companies argued that it was not permissible for the plaintiff to seek compensatory orders on behalf of persons who were not party to the proceedings. Bell J agreed, striking out those parts of the claim that related to "other persons". Bell J observed that, as her claim was pleaded, the plaintiff had potentially claimed relief on behalf of every member of the Australian population.
(See further: Cauvin v. Philip Morris Limited & Ors [2005] NSWSC 640 (26 August 2005)).