Cauvin v. Philip Morris Limited & Ors

This case flowed from two decisions of the High Court in relation to licence fees for tobacco products imposed by the States and Territories. In Ha v State of New South Wales (1997) 189 CLR 465 the High Court held that the legislative licensing scheme was constitutionally invalid because it imposed an excise. Shortly afterwards the Federal government enacted legislation which effectively reimposed the licensing scheme.

Under the earlier (invalid) scheme retailers of tobacco products paid wholesalers the amounts of tax shown on the purchase invoices and a month later the wholesalers paid the tax to the authorities. When the High Court's decision in Ha was delivered the wholesalers had received tax payments from retailers but had not yet passed on those payments to the tax authorities, and due to the decision in Ha they were no longer required to do so. The tobacco wholesalers had therefore reaped a windfall of about $230M. Therefore, in Roxborough v Rothmans of Pall Mall Australia (Ltd) 2001 76 ALR 203 the High Court held that the law required the wholesalers to make restitution to the retailers of the amounts of tax the retailers had paid under the unlawful scheme.

In this case the plaintiff sought an injunction preventing the tobacco wholesalers from making restitution to the retailers and a declaration that the money instead be paid to her and others on whose behalf she had brought the claim: purportedly, people throughout Australia who had purchased cigarettes in respect of which the licence fee had been erroneously applied.

Palmer J refused the plaintiff's claim on a number of grounds, including that the plaintiff's case against the wholesalers was "extremely weak".

Note that the plaintiff subsequently brought another action against the tobacco companies: see e.g. Cauvin v Philip Morris Limited & Ors [2004] NSWSC 644 (24 September 2004).


Cauvin v. Philip Morris Limited & Ors [2002] NSWSC 528 (13 June 2002)

  • Australia
  • Jun 13, 2002
  • New South Wales Supreme Court


Plaintiff Myriam Cauvin


  • British American Tobacco Australasia Limited
  • British American Tobacco Australia Limited
  • British American Tobacco Australia Services Limited
  • Coles Myer Limited
  • Coles Supermarkets Pty Limited
  • Darren Johnston Barker
  • Gina Joanne Barker
  • Philip Morris (Australia) Limited
  • Philip Morris Limited

Legislation Cited

Trade Practices Act 1974

Related Documents

Type of Litigation


Tobacco Control Topics

Substantive Issues


Type of Tobacco Product