Robinson v. Eureka Operations Pty Ltd

The plaintiff, the Chief Health Officer of the New South Wales Department of Health, brought 26 prosecutions against the defendant for breaching s61B of the Public Health Act 1991, which created an offence for directly or indirectly displaying a tobacco advertisement.

The defendant owned a number of convenience stores. It was alleged that on each count a health officer had entered one of the defendant's stores and asked for a single packet of cigarettes, and then the sales assistant had told the health officer that he/she could have a second packet of cigarettes at a reduced price.

James J agreed with the prosecution that this conduct constituted "display" of tobacco advertisement in contravention of the Act. James J rejected the defence argument that a tobacco advertisement must have some degree of permanency and not be merely transient, among other things because "audible message" was included in the definition of "tobacco advertisement" in the Act.

For the further sentencing decision, see: Robinson v. Eureka Operations Pty Ltd [2009] NSWSC 784.

Robinson v. Eureka Operations Pty Ltd [2008] NSWSC 1235 (19 December 2008)

  • Australia
  • Dec 19, 2008
  • New South Wales Supreme Court

Parties

Plaintiff Dr Denise Robinson

Defendant Eureka Operations Pty Ltd

Legislation Cited

Public Health Act 1991

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"It is true that the definition of the word “display” in s 53 of the Act is a merely inclusive definition and in the absence of any relevant definition in a statute of a word used in the statute, the ordinary meaning of the word would be likely to apply. However, in the present case, as was submitted by counsel for the plaintiff, the legislature, by prohibiting in s 61B the displaying of a tobacco advertisement and by including “audible message” in the definition of “tobacco advertisement” in s 53, has itself indicated that the word “display” in the Act is not to be interpreted as limited to its ordinary meaning. Once it is accepted that an audible message is capable of being “displayed” within the meaning of the word as used in the Act, I do not consider that there is any warrant for limiting the display of an audible message to a display which has some degree of permanency. Obviously, if such a requirement was adopted, difficult questions would be likely to arise as to whether a particular display had the requisite degree of permanency or was too transient to amount to a display within the meaning of the word in the Act. Unlike the word “display”, the expression “tobacco advertisement” is defined exhaustively in the Act. The definition includes “any … audible message … that gives publicity to or otherwise promotes or is intended to promote (a) the purchase or use of a tobacco product”. What was said by the sales person in each case falls squarely within the definition. As in the case of the word “display”, there is, in my opinion, no warrant for requiring what was said to have some degree of permanency before it could fall within the definition."