Australian Federation of Consumer Organisations Inc. v Tobacco Institute of Australia Ltd

[1991] FCA 164

Re: AUSTRALIAN FEDERATION OF CONSUMER ORGANISATIONS INCORPORATED
And: TOBACCO INSTITUTE OF AUSTRALIA LIMITED
No. G 253 of 1987
FED No. 164
Practice
(1991) 13 ATPR 41-114

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Practice - close of respondent's case - application to re-open - late application - application refused.

HEARING

SYDNEY

#DATE 15:4:1991

ORDER

Application dismissed.

Costs of application to be costs in the principal proceedings.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

In spite of the careful submissions which Mr Walker has made in support of the application, I do not think I should accede to it.

1. I published my reasons for decision in this matter on 7 February this year and I subsequently heard lengthy submissions on the form of the final orders which should be made. The parties were informed early on Friday morning by my associate that the matter would be put in the list tomorrow for the making of final orders.

2. Later the same morning senior counsel for the respondent applied ex parte for leave to give short notice of an application to re-open the respondent's case. I granted that leave and made the application returnable this morning.

3. The respondent wishes to re-open its case for the purpose of tendering in evidence two reports of studies which have appeared in learned medical journals and an abstract of a paper delivered at a meeting of epidemiologists in Berkeley, California, in August 1990. The respondent also wishes to tender testimony as to the significance of that material.

4. As I said during the course of argument, I accept without the slightest reservation, the statement made by Mr Eggleton, the respondent's solicitor, that the new material first came to his attention on 9 April this year. However, I would have thought that some of the material, particularly the article by Wu-Williams, et al, (which appeared in The British Journal of Cancer in December 1990) would have come to the knowledge of most of the scientists called in evidence by the respondent and also of the respondent itself. I am not being critical about this matter so far as the scientists are concerned. They may not have a continuing brief to advise the respondent. But, so far as the respondent itself is concerned, this litigation has obviously been treated by them as a matter of great importance and I would have thought they would have maintained their interest in the subject pending the making of final orders. The lateness of the application is a matter which is deserving of some comment.

5. Before referring to the new material which the respondent wishes to tender in evidence, I should refer to two matters. The first is that the critical passage in the advertisement, which is at the centre of this litigation refers to "disease" and not to "cancer". In my reasons I considered the correctness of the statement made in the advertisement insofar as it applied to diseases of various kinds, being cancer, asthma, respiratory disease in young children and otitis media. The new material relates only to cancer and it could have no bearing on my findings as to the other diseases referred to in my reasons.

6. Secondly, when dealing with cancer in my reasons, I made it clear that my decision was based on a number of considerations, not all of which were epidemiological in a technical sense. In this regard I can do no better than refer to what I said at pp 133 and 134 of my reasons where I said:
   "The conclusion that cigarette smoke causes lung cancer in
   non-smokers cannot be drawn from any one epidemiological study or
   piece of evidence. But I think it can be drawn from the totality of
   the available data and by valid reasoning from it. A summary of the
   reasons which lead me to this conclusion is contained in the
   statement with which Professor Wald concluded his proof of evidence.
   I agree with what he there said, which was as follows:
   

`In our 1986 paper we concluded that breathing other people's tobacco smoke was a cause of lung cancer and our conclusion rested on several sources of evidence, not only the statistically significant association between lung cancer and exposure to environmental tobacco smoke. It also rested on other evidence, including the fact that carcinogens in tobacco smoke are released into the air and that tobacco smoke is breathed into the lungs by non-smokers. Non-smokers who are exposed to environmental tobacco smoke absorb tobacco products into their blood and tissues, and their urine contains chemicals that are mutagenic, that is chemicals that can induce change in the genetic material in a manner that is thought to be fundamental to the initiation of cancer. It is known that active smoking causes lung cancer, a strong effect in which the risk of lung cancer is some 14 times that in non-smokers. It is the accepted scientific view that exposure to carcinogens does not have a threshold below which there is no effect and, therefore, one would expect that non-smokers who inhale environmental tobacco smoke would have at least some increased risk of lung cancer. The conclusion that the excess risk is at the order of 30-50% is plausible in the light of the much higher risk of lung cancer due to active smoking. Given all the evidence I believe that the conclusion that breathing other people's smoke is a cause of lung cancer is scientifically sound."

1. I should also refer to what I said on page 133 that I took the reference to scientific proof in the advertisement to be a reference to "compelling or convincing evidence".

2. I turn now to consider the new material which the respondent wishes to tender. The first is an article which appeared in the British Journal of Cancer in December 1990. It is true, as Mr Walker has submitted, that table 3 in the article which deals specifically with risks associated with passive smoke exposure contains material which would support the case which the respondent made at the trial. However, in the discussion of their paper Wu-Williams and his fellow authors make the following observation:
   "We observed no overall association between lung cancer risk
   and passive smoking. Our results varied by source of passive
   smoke exposure, however, with non-smoking cases reporting less
   exposure from spouses (but only in Harbin) more exposure from
   fathers, and similar exposure from mothers when compared to
   non-smoking controls. Despite the large size of our study, we
   were unable to clarify the magnitude of risks due to passive
   smoking, recognised as a cause of lung cancer around the world
   (Surgeon General, 1986). Perhaps in this study population the
   effects of environmental tobacco smoke was obscured by the rather
   heavy exposures to pollutants and coal-burning Kang, other indoor
   heating sources, and high levels of neighbourhood air pollution."
   

("Kang" is a type of fuel)

1. The second study, which is by Sovue et al and which appeared in the Japanese Journal of Cancer on some unspecified date in 1990, there are results of a further survey. I will not read in detail what can be gleaned from tables 1 and 2 in the article.

2. On page 6, the authors state, inter alia:
   "No statistical significance was obtained from the effect of
   maternal smoking when the subjects were young. However the
   estimated odds ratio was high (1.79) ...."
   On the same page the authors make a comment on the difference in the study results between exposure of a child to its father's smoking as compared with its mother's smoking and state:
   "Compared with the mother, the time a child spends with her
   father is expected to be short; and the tendency towards a
   decline in risk is believed to be due to some confounding factor
   (such as social class)."
   

3. If one reads the whole of the article, particularly what is said at the foot of p 6 and the top of p 7, one is left with the impression that the authors of the study do not necessarily regard their findings as being inconsistent with other epidemiological data suggesting that a husband's smoking raises his wife's risk of lung cancer.

4. The abstract is an abstract of an address given by three scientists at a meeting of the International Society for Environmental Epidemiology in August 1990. This passage appears in the abstract:
   "The result showes (sic) that, in females who do not smoke, the
   presence of lung cancer is statistically significantly associated
   ... with chronic bronchitis and family history of lung cancer.
   the (sic) results also suggest an association of lung cancer with
   duration of cooking food, but not with passive smoking."
   

5. It does not appear from the abstract whether a non-statistically significant association was found between passive smoking and lung cancer or simply no association at all. The abstract is really not very informative.

6. I have not been referred by counsel to any authorities as to the principles which should be applied in an application to lead fresh evidence at a very late stage of proceedings. However, the principles applicable to an application to admit fresh evidence on the hearing of an appeal are of some help in deciding what the proper approach should be. In that respect I need do no more than refer to what was said in Arnotts v Trade Practices Commission (1990) 97 ALR, 555 at 612:
   "Counsel for both the appellants and the Commission agreed that
   in determining whether fresh evidence should be introduced on a
   hearing of an appeal the established principle is that such
   evidence should not be allowed unless it is almost certain that if
   the evidence had been available and had been adduced at the trial
   an opposite result would have been reached by the primary judge."
   And thereafter reference is made to Orr v Holmes (1948) 76 CLR, 632 at 642. I have been referred to what was said in Totterdell v Nelson (6/11/90 unreported) where it is recognised that where the interests of third parties may be concerned the general rule may have no application. Mr Walker has relied upon the exception referred to in Totterdell. I have had regard to what was said in that case but it does not lead me to conclude that, on the facts of the present case, I should permit the proposed new evidence to be given. I do not think it would have a significant effect on the outcome of the litigation. It is very late and I think it is time that this litigation came to an end.

7. It was proper for this application to be made if only to protect the respondent on appeal should it wish to rely upon fresh evidence in support of its case on appeal. I agree with Mr Walker that it would have been unwise for it not to have raised the matter before final orders were made.

8. I decline to grant leave to the respondent to reopen its case.

9. I make orders in terms of the final orders signed by me and placed with the papers and which I now publish. I also publish some brief reasons for making those orders and I also publish separate reasons for the costs order which is included in the final orders.