This was an application by the plaintiff for an extension of time to file a further amended statement of claim.
The plaintiff alleged that the defendant companies had conspired to promote the benefits and pleasures of smoking and to deny, dispute or minimize the risks associated with smoking, for the purpose of inducing consumers to smoke cigarettes. The plaintiff alleged that this conduct constituted misleading or deceptive conduct in contravention of s52 of the Trade Practices Act. She further alleged that as a consequence of the defendants' conduct she had commenced, continued, recommenced and/or not ceased to smoke cigarettes and had therefore contracted emphysema.
The plaintiff had previously served several different versions of her statements of claim, portions of which had been struck out. At the previous hearing, Bell J had granted her 4 weeks leave to file a further amended statement of claim (see: Cauvin v. Philip Morris Limited and Ors [2005] NSWSC 640).
At the initial hearing of this application, counsel for the plaintiff conceded that the proposed pleading remained flawed and sought leave to file still another version. In relation to the further amended statement of claim, Bell J was of the view that it remained deficient, because the plaintiff had not pleaded how the defendants' alleged conduct had impacted on her personally. Nonetheless, Bell J granted leave for the amended pleading to be filed, on the basis that the deficiencies could be addressed by way of particulars.
Cauvin v. Philip Morris Limited & Ors [2006] NSWSC 185
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
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.
"In supplementary written submissions Mr Francey contended: Further, the issue of causation is relevant only to the Plaintiff’s personal claim. It is not a necessary ingredient of the general claim. Accordingly, leave should be granted for the Plaintiff to pursue remedies in relation to the general claim in any event. If that is to occur, it makes sense to leave the Plaintiff’s individual claim in place to be evaluated on the evidence adduced at any hearing (WS 16 February 2006 at [4])). I have decided that notwithstanding the deficiency in pleading her personal claim I should not refuse the plaintiff leave to proceed on her 3ASC. As Mr Francey submitted, the general claim pleaded in the 2ASC (and now the 3ASC) is consistent with the rulings earlier made in the proceedings. The personal claim is necessarily in a more confined compass than the general claim. I do not accept that it is open to the plaintiff to have her personal claim left as it stands to be evaluated on the evidence that may be adduced at the hearing. The defendants are entitled to know what conduct is alleged against them as having caused the plaintiff’s loss and damage or given rise to the likelihood of loss and damage. I consider that this can be achieved by the requirement that the plaintiff provide particulars of her personal claim. In light of the scope of the general claim, I do not consider that approaching the personal claim in this way will occasion prejudice to the defendants. The complaint that the Philip Morris defendants make in their written submissions that the plaintiff pleads she has smoked “the cigarettes” (paragraph 2.9) and the respects in which she seeks to make a case that she “may” smoke “the cigarettes” is one that can be addressed by particulars. This applies also to the complaint as to paragraph 2.20 of the 2ASC (paragraph 2.18 of the 3ASC)."
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 an application by the plaintiff for an extension of time to file a further amended statement of claim.
The plaintiff alleged that the defendant companies had conspired to promote the benefits and pleasures of smoking and to deny, dispute or minimize the risks associated with smoking, for the purpose of inducing consumers to smoke cigarettes. The plaintiff alleged that this conduct constituted misleading or deceptive conduct in contravention of s52 of the Trade Practices Act. She further alleged that as a consequence of the defendants' conduct she had commenced, continued, recommenced and/or not ceased to smoke cigarettes and had therefore contracted emphysema.
The plaintiff had previously served several different versions of her statements of claim, portions of which had been struck out. At the previous hearing, Bell J had granted her 4 weeks leave to file a further amended statement of claim (see: Cauvin v. Philip Morris Limited and Ors [2005] NSWSC 640).
At the initial hearing of this application, counsel for the plaintiff conceded that the proposed pleading remained flawed and sought leave to file still another version. In relation to the further amended statement of claim, Bell J was of the view that it remained deficient, because the plaintiff had not pleaded how the defendants' alleged conduct had impacted on her personally. Nonetheless, Bell J granted leave for the amended pleading to be filed, on the basis that the deficiencies could be addressed by way of particulars.