Australia

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).