Cauvin v Philip Morris Limited - [2005] NSWSC 640

CITATION:
Cauvin v Philip Morris Limited & Ors [2005] NSWSC 640

HEARING DATE(S): 4/4/05, 5/4/05

JUDGMENT DATE :

26 August 2005

JUDGMENT OF:
Bell J at 1

DECISION:
1. The plaintiff has leave to file and serve her second amended statement of claim in conformity with these reasons within four weeks of today's date; 2. The plaintiff is to pay the defendants' costs of the motion as agreed or assessed

LEGISLATION CITED:
Civil Procedure Act 2005
Supreme Court Rules 1970
Trade Practices Act 1974
Trade Practices Amendment Act 1977
Trade Practices Revision Act 1986
Uniform Civil Procedure Rules 2005

CASES CITED:
Bray v F Hoffman-La Roche Ltd [2002] FCA 243; 118 FCR 1
Bray v F Hoffman La Roche Ltd [2003] FCAFC 153; 200 ALR 607
Cauvin v Philip Morris Limited [2003] NSWSC 631
Cauvin v Philip Morris Ltd [2004] NSWSC 644
International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644
Gould v National Provincial Bank [1960] Ch 337
Janssen & Cilag Pty Ltd v Pfizer Pty Ltd (1992) 109 ALR 638
McKellar v Container Terminal Management Services Ltd [1999] FCA 1101165 ALR 409
March v Stramare (E & M H) Pty Ltd 50 (1991) 171 CLR 506
Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34
Smith, Stone & Knight Ltd v Birmingham Corporation [1939] 4 All ER 116
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Yorke v Lucas (1985) 158 CLR 661

PARTIES:
Myriam Cauvin (Plaintiff)
Philip Morris Limited (ACN 004 694 428) (1st Defendant)
Philip Morris (Australia) Limited (ACN 004 316 901) (2nd Defendant)
British American Tobacco Australia Services Limited (ACN 004 069 649) (3rd Defendant)
W.D. & H.O. Wills Holdings Limited (ACN 003 763 291) (4th Defendant)
British American Tobacco Australasia Limited (ACN 002 717 160) (5th Defendant)
British American Tobaco Australia Limited (ACN 000 151 100) (6th Defendant)
Imperial Tobacco Australia Limited (ACN 046 148 681) (7th Defendant)

FILE NUMBER(S):
SC 11301/02

COUNSEL:
N. Francey (Plaintiff)
J.R. Sackar QC / S. O'Meara (1st and 2nd Defendants)
D. Beach SC / M. Wheelahan SC (3rd and 4th Defendants)
I. Jackman / S.A. Goodman (5th and 6th Defendants)
L.G. Foster SC / I. R. Pike (7th Defendant)

SOLICITORS:
Maurice May & Co (Plaintiff)
Allens Arthur Robinson (1st and 2nd Defendant)
Corrs Chambers Westgarth (3rd and 4th Defendants)
Baker & McKenzie (5th and 6th Defendants)
Gilbert & Tobin (7th Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 26 August 2005

11301/02 Myriam Linda Cauvin v Philip Morris Limited (ACN 004 694 428)
JUDGMENT

1 BELL J: The plaintiff moved on notice filed on 3 September 2003 for orders, including:

“1. That leave be granted to the Plaintiff to join as additional parties the companies listed as Defendants Eight to Sixteen in the Proposed Second Amended Statement of Claim forming Exhibit RD1 to the Affidavit of Rebecca Dimaridis sworn 3 September…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWSC 640
Decision Date: 26 August 2005

CaseChat Overview and Summary

In Cauvin v Philip Morris Limited, Myriam Cauvin, the plaintiff, sought leave to file a second amended statement of claim against Philip Morris Limited and other defendants, including overseas corporations, alleging misleading and deceptive conduct under the Trade Practices Act 1974 (TPA). The defendants opposed the motion to join the overseas corporations and the form of the proposed second amended statement of claim. Bell J held that the plaintiff had not articulated a tenable case to attach liability to the overseas companies for the conduct alleged. The pleadings concerning the relationships between the primary and secondary defendants were found to be too broad and imprecise to support the claims made. The proposed secondary defendants' liability for the contravening conduct under s 75B of the TPA could not stand as there was no allegation of conduct by any of the proposed secondary defendants in Australia. The plaintiff's attempt to join foreign corporations as defendants was deemed unnecessary to ensure that all matters in dispute could be effectually and completely determined. Bell J also struck out several paragraphs in the proposed second amended statement of claim for being vague, irrelevant, or attempting to re-litigate issues already determined. The plaintiff was granted four weeks to file a further amended statement of claim in conformity with the reasons provided and ordered to pay the defendants' costs of the motion.

Orders