British American Tobacco Australia Limited v Secretary, Department of Health and Ageing

[2011] FCA 718

FEDERAL COURT OF AUSTRALIA

British American Tobacco Australia Limited v Secretary, Department of Health and Ageing [2011] FCA 718

Citation:		British American Tobacco Australia Limited v Secretary, Department of Health and Ageing [2011] FCA 718
Parties:		BRITISH AMERICAN TOBACCO AUSTRALIA LIMITED v SECRETARY, DEPARTMENT OF HEALTH AND AGEING
File number:		VID 314 of 2011
Judge:		NORTH J
Date of judgment:		7 June 2011
Date of hearing:	7 June 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	13
Counsel for the Applicant:	Mr A J Myers QC with Mr A J Maryniak
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	Mr P Hanks QC
Solicitor for the Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 314 of 2011

BETWEEN:	BRITISH AMERICAN TOBACCO AUSTRALIA LIMITED Applicant
AND:	SECRETARY, DEPARTMENT OF HEALTH AND AGEING Respondent

JUDGE:	NORTH J
DATE OF ORDER:	7 JUNE 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be accorded such expedition as the Court can provide;

2.The costs of the application by the applicant for expedition are costs in the appeal.

3.The motion, notice of which was filed by the applicant on 1 June 2011 seeking expedition is otherwise dismissed.

4.The motion, notice of which was filed by the respondent on 3 June 2011 seeking dismissal of the appeal is adjourned to 11.00 am on 14 June 2011.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 314 of 2011

BETWEEN:	BRITISH AMERICAN TOBACCO AUSTRALIA LIMITED Applicant
AND:	SECRETARY, DEPARTMENT OF HEALTH AND AGEING Respondent

JUDGE:	NORTH J
DATE:	7 JUNE 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant, British American Tobacco Australia Limited, by notice of motion filed on 1 June 2011, seeks an order that this appeal be fixed for hearing on an expedited basis. 

2. The appeal instituted by the applicant on 21 April 2011 takes issue with a decision of the Administrative Appeals Tribunal which had the effect of denying the applicant access to legal advice obtained approximately 15 years ago by the respondent, the Secretary, Department of Health and Ageing, concerning compliance by Australia with its international obligations in respect of then proposed plain packaging of tobacco products.

3. The Chief Justice has directed that the appeal be heard by a Full Court in view of the divergent authorities concerning s 16(3) of the Parliamentary Privileges Act 1987 (Cth).

4. The reason advanced by the applicant for an order expediting the appeal is that it desires to participate in a public debate currently underway concerning the proposed introduction of legislation to provide for plain packaging of tobacco products.  The applicant said it requires the legal advice in order to participate in that debate.

5. The applicant learned yesterday that the respondent intends to promulgate regulations to achieve the plain packaging outcome in July 2011.  The regulations are intended to be introduced pursuant to the Tobacco Plain Packaging Bill 2011 once enacted.  Mr Myers QC, who appeared on behalf of the applicant, explained that the effective instrument for the introduction of the plain packaging system lies in the regulations rather than the legislation to which they refer.   It is likely that there will be a 60-day period of consultation from the date in July when the regulations are made available.  The applicant contends that unless it has a judgment prior to the end of the consultation period, there may no longer be any utility in its appeal.  Whilst the applicant’s right to access the legal advice, if successful in the appeal, would remain, the substantial value of that right would be lost. 

6. The applicant explained that it is anticipated that the appeal would take one day to be heard.  It also pointed out that the respondent initially agreed to the expedition of the appeal, subject only to the convenience of counsel for the respondent who has apparently been retained in the matter for a considerable time. At the hearing, the respondent’s position changed to some extent.  The respondent did not oppose the order for expedition but said that it is a matter for the Court.  The respondent accepted that if the appeal is not resolved before the end of the consultation period any right to the legal advice would be diminished to some degree, but it did not accept that the appeal would be valueless. 

   CONSIDERATION

7. Whilst the lack of opposition by the respondent to the application for expedition is a matter of relevance and some significance to the Court, at the heart of this application is a necessity for the Court to balance the consequences of refusing an order for expedition against the effect on other litigants waiting in the appeal lists. If the order is not made, the appeal would come on in the ordinary course in the November sittings of the Court. 

8. There is some weakness in the position put by the applicant that access to the legal advice is necessary in order for the applicant to participate in the public debate and to make representations in the consultation period about the conformity of the legislation with Australia’s international obligations.  The applicant is able to obtain its own legal advice and use it in the public debate to influence opinion, if it be the case that the proposed legislation does not conform to Australia’s international legal obligations.  In that regard, it is unnecessary for the applicant to have access to the legal advice obtained by the respondent. 

9. Thus, the value to the applicant of obtaining the legal advice given to the respondent lies in the applicant’s ability to contend that, not only is the legislation in breach of Australia’s international obligations, if that be the case, but that the respondent has been advised to that effect.  There is, therefore, only a fairly small detriment which the applicant suffers if the appeal takes the ordinary course and is heard in November.

10. Whilst the applicant’s reason for advancing the case in the appeal list is not strong, and the result of advancing it will be to disadvantage other appeals in the list, consideration should be given to the fact that part of the right which the applicant seeks to assert will disappear forever if the expedition is not accorded to it.  In other words, the balance is slightly tipped in favour of the applicant as a result of the submission of Mr Myers that the right to utilise the legal advice, if the Court decides in favour of the applicant, is one which should be taken into consideration in favour of the applicant.

11. Save for one issue therefore, the Court will order that the appeal be accorded such expedition as the Court can afford it.  Freely interpreted and without treading on the toes of those who set the lists, it is expected, but cannot be guaranteed, that this will mean the case will obtain a hearing in or about the August appeal sittings. 

    NOTICE OF MOTION FOR DISMISSAL OF APPEAL

12. The one matter which may still affect the arrangement for expedition of the appeal is the notice of motion filed by the respondent on 3 June 2011, seeking that the appeal be dismissed as incompetent under O 52 r 18 of the Federal Court Rules, on the ground that the notice of appeal fails to set out the questions of law required pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

13. This motion came on for directions today.  Whilst the determination of the notice of motion will affect the timetabling of the appeal, Mr Myers informed the Court that consideration is well underway to recast the questions defined in the notice of appeal.  He expressed some confidence that this would resolve the issue between the parties.  The decision of the Court on the expedition application proceeds upon an assumption that, within a short time, the issue raised by the notice of motion will be resolved between the parties so that any contention between them will not prejudice the expedition ordered by the Court.  In order to ensure that this is the case, the notice of motion will be listed for mention a short time hence in order to gauge its progress.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        23 June 2011