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)
Measures dealing with criminal and civil liability, including compensation.
(See FCTC Art. 19)
Substantive Issues
None
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 my view, the injunction should be refused, first because the Plaintiff’s case against the Wholesalers is extremely weak and, second, because the balance of convenience is against the granting of the injunction sought. The principal factors which I have taken into account in concluding, even at this very early stage of the proceedings, that the Plaintiff’s case against the Wholesalers is extremely weak are as follows. First, it is very difficult, if not impossible, to see how the Plaintiff’s claim against the Wholesalers for money had and received can succeed. As Roxborough made clear, the payments which the Wholesalers received were payments out of the Retailers’ own money; no part was made up of the consumers’ money or was money paid by the Retailers for or on behalf of consumers. I appreciate that Roxborough does not create an issue estoppel against the Plaintiff because she and those she claims to represent were not parties. However, there is a very strong argument that an attempt by the Plaintiff to re-litigate the issue whether the money paid to the Wholesalers was the Retailers’ own money, when that very issue has already been tried all the way to the High Court, would be struck down as frivolous and vexatious under Part 13 R.5(1): see Stephenson v Garnett[1898] 1 QB 677, at 680-681 per A.L. Smith LJ; Reichel v Magrath (1889) 14 App Cas 665, at 668 per Lord Halsbury LC; Hunter v Chief Constable [1982] AC 529, at 542 per Lord Diplock.20 Second, for the same reason, it is difficult, if not impossible, to see how the Plaintiff’s claim against the Wholesalers for unjust enrichment can succeed. The Wholesalers have received no money at all from the consumers; how can they have they have been enriched at the expense of the consumers?"
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 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).