Tobacco Control Coalition Inc v. Philip Morris (Australia) Ltd & Ors
The Tobacco Control Coalition Incorporated (TCCI) had commenced a representative action against the three major tobacco companies in Australia on behalf of health care organisations and Australian smokers. TCCI alleged that the tobacco companies' conduct was misleading or deceptive in contravention of the Trade Practices Act 1974 and the various state Fair Trading Acts. In particular, TCCI alleged that each of the companies knew that nicotine was addictive and that smoking caused disease and, despite that knowledge, promoted the sale of cigarettes, represented that certain brands were less hazardous than others, and lobbied governments against tobacco control measures (amongst other things).
TCCI was incorporated pursuant to the Associations Incorporation Act 1984 (NSW). Behind it stood various public health organisations and anti-cancer groups. TCCI admitted that it was impecunious, and would not be able to pay any costs order made against it.
Each of the defendant tobacco companies brought an application for security for costs which, if granted, would require TCCI to pay an amount into the Court to secure any adverse costs order that might be made.
The Court considered that the financial circumstances of TCCI were a powerful consideration in favour of an award for security. However, the Court recognised that there might be competing considerations; namely, the prospects of success of the litigation, and the fact that this was allegedly "public interest" litigation. If the Court was satisfied there were good prospects of success and that the litigation was in the public interest, it might not award security despite the impecuniosity of the plaintiff.
However, the Court found that TCCI's statement of claim suffered fundamental flaws and was prolix and confused. Among other things, it was impossible for the Court to identify the members of the representative proceeding from the way they had been defined; and, further, TCCI was seeking to have declarations made about the conduct of companies who were not parties to the proceeding (including overseas entities).
On that basis, the Court granted the defendants' application for security for costs. See subsequent decision: Tobacco Control Coalition Inc. v Philip Morris (Australia) Ltd & Ors [2000] FCA 1404 (14 September 2000).
Tobacco Control Coalition Inc v. Philip Morris (Australia) Ltd & Ors [2000] FCA 1004 (27 July 2000)
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.
Any violation of a law designed to ensure fair trade, competition, or the free flow of truthful information in the marketplace. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue.
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.
"It seems to me that, if Schedule B of the Application was amended in such a way as to restrict the “class members” to people who have been caused, by the respondents’ alleged contravening conduct, to commence smoking, or not to quit smoking, the claim of those members would fall within s87(1) or (1A) of the Trade Practices Act. Even though, by definition, none of the class members could establish that he or she was symptomatic prior to the commencement of the proceeding, all the members would be smokers; and each member’s smoking would, allegedly, be causally connected to the contravening conduct of the respondents. Although it would not be alleged (and could not be established) that all the class members would contract a smoking related disease, it would be alleged they are all likely to do so, and thus likely to suffer loss or damage. Epidemiological evidence might establish the validity of that claim, attributing to the word “likely” the meaning adopted by Gaudron J in Marks: a “real chance or possibility”, as distinct from a probability. However, it is one thing to accept the possibility of the present case being so amended as to fall within the words used in s87(1) or (1A). It is another thing to envisage the Court exercising, in favour of such a class member, the discretion conferred by either of those subsections. I find it difficult to believe any judge would make a substantial compensatory order in favour of a person who was not yet symptomatic, and might never become symptomatic; who might suffer substantial loss or damage, but might not. I also think there would be an unwillingness to grant token compensation. This might be thought to preclude, or complicate, any proceeding for substantial compensation or damages that might be brought by, or on behalf of, the person if he or she was later diagnosed as actually suffering from a smoking related disease."
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.
The Tobacco Control Coalition Incorporated (TCCI) had commenced a representative action against the three major tobacco companies in Australia on behalf of health care organisations and Australian smokers. TCCI alleged that the tobacco companies' conduct was misleading or deceptive in contravention of the Trade Practices Act 1974 and the various state Fair Trading Acts. In particular, TCCI alleged that each of the companies knew that nicotine was addictive and that smoking caused disease and, despite that knowledge, promoted the sale of cigarettes, represented that certain brands were less hazardous than others, and lobbied governments against tobacco control measures (amongst other things).
TCCI was incorporated pursuant to the Associations Incorporation Act 1984 (NSW). Behind it stood various public health organisations and anti-cancer groups. TCCI admitted that it was impecunious, and would not be able to pay any costs order made against it.
Each of the defendant tobacco companies brought an application for security for costs which, if granted, would require TCCI to pay an amount into the Court to secure any adverse costs order that might be made.
The Court considered that the financial circumstances of TCCI were a powerful consideration in favour of an award for security. However, the Court recognised that there might be competing considerations; namely, the prospects of success of the litigation, and the fact that this was allegedly "public interest" litigation. If the Court was satisfied there were good prospects of success and that the litigation was in the public interest, it might not award security despite the impecuniosity of the plaintiff.
However, the Court found that TCCI's statement of claim suffered fundamental flaws and was prolix and confused. Among other things, it was impossible for the Court to identify the members of the representative proceeding from the way they had been defined; and, further, TCCI was seeking to have declarations made about the conduct of companies who were not parties to the proceeding (including overseas entities).
On that basis, the Court granted the defendants' application for security for costs. See subsequent decision: Tobacco Control Coalition Inc. v Philip Morris (Australia) Ltd & Ors [2000] FCA 1404 (14 September 2000).