Dr Denise Robinson v Eureka Operations Pty Ltd - [2009] NSWSC 784

CITATION: Dr Denise Robinson v Eureka Operations Pty Ltd [2009] NSWSC 784

HEARING DATE(S): 24/11/08, 19/12/08, 18/02/09, 19/06/09

JUDGMENT DATE :
13 August 2009

JUDGMENT OF: James J

DECISION: 1. For each of the 3 offences in which liability was contested I impose a fine of $5000.
2. For each of the 23 offences in which liability was not contested I impose a fine of $4000.
3. As applied for by the prosecutor and not opposed by Eureka, I make an order under s 122 of the Fines Act that one half of the fines be paid to the prosecutor.
4. I make an order that Eureka pay the prosecutor’s costs of the proceedings agreed at $50,000.

CATCHWORDS: CRIMINAL LAW — Supreme Court summary jurisdiction — sentencing — Public Health Act s 61B — displaying of tobacco advertisement

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Criminal Procedure Act
Fines Act
Public Health Act

CASES CITED: Camelleri’s Stockfeeds Pty Ltd v Environment Planning Authority (1993) 32 NSWLR 683
Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd (2003) 196 ALR 350
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419
EPA v Buchanan (No 2) [2009] 165 LGERA 383
EPA v Ross [2009] NSWLEC 36
Pearce v The Queen (1998) 194 CLR 610
R v Crombie [1999] NSWCCA 297
R v Doan (2000) 50 NSWLR 115
R v Weldon (2002) 136 A Crim R 55
Timothy Brokenshire (South Eastern Sydney Area Health Service) v Philip Morris Limited & Wavesnet.net.Pty Ltd (8 November 2002)

PARTIES: Dr Denise Robinson
Eureka Operations Pty Ltd trading as Coles Express and 23 other matters

FILE NUMBER(S): SC 10221/08-10222/08; 10224/08; 10229/08; 10233/08-10234/08; 10239/08; 10242/08; 10244/08; 10446/08-10248/08; 10250/08-10252/08; 10256/08-10257/08; 10259/08-10261/08; 10265/08-10267/08; 10262/08; 10217/08; 10228/08

COUNSEL: B Hodgkinson SC / I Bourke - Prosecutor
I Temby AO QC / D Mitchell - Defendants

SOLICITORS: NSW Department of Health
Sparke Helmore Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

THURSDAY 13 AUGUST 2009

10221/08 DR DENISE ROBINSON v EUREKA OPERATIONS PTY LTD t/as COLES EXPRESS DURAL
10222/08 DR DENISE ROBINSON v EUREKA OPERATIONS PTY LTD t/as COLES EXPRESS MERRYLANDS
10224/08 DR DENISE ROBINSON v EUREKA OPERATIONS PTY LTD t/as COLES EXPRESS GRIFFITH
10229/08 DR DENISE ROBINSON v EUREKA OPERATIONS PTY LTD t/as COLES EXPRESS BATHURST WEST
10233/08 DR DENISE ROBINSON v EUREKA OPERATIONS PTY LTD t/as COLES EXPRESS WATERLOO
10234/08 DR DENISE ROBINSON v EUREKA OPERATIONS PTY LTD t/as COLES EXPRESS BASS HILL
10239/08 DR DENISE ROBINSON v EUREKA OPERATIONS PTY LTD t/as COLES EXPRESS PORT MACQUARIE
10242/08 DR DENISE ROBINSON v EUREKA OPERATIONS PTY LTD t/as COLES EXPRESS
10244/08 DR DENISE ROBINSON v EUREKA OPERATIONS PTY LTD t/as COLES EXPRESS LIDCOMBE
10246/08 DR DENISE ROBINSON v EUREKA OPERATIONS PTY LTD t/as COLES EXPRESS CLARENDON
10247/08 DR DENISE ROBINSON v EUREKA OPERATIONS PTY LTD t/as COLES EXPRESS COFFS HARBOUR
10248/08 DR DENISE ROBINSON v EUREKA OPERATIONS PTY LTD t/as COLES EXPRESS…

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: [2009] NSWSC 784
Decision Date: 13 August 2009

CaseChat Overview and Summary

Denise Robinson, a medical practitioner, commenced proceedings against Eureka Operations Pty Ltd for the display of tobacco advertising signs in the vicinity of her medical practice, which she claimed contravened section 61B of the Public Health Act. The matter was heard in the Supreme Court of Victoria, which has summary jurisdiction in matters concerning breaches of the Public Health Act. The court was required to determine whether Eureka Operations Pty Ltd had indeed breached section 61B and, if so, what the appropriate sentence would be under the statute.

The legal issue at the heart of this case was whether the display of tobacco advertising signs in the vicinity of Dr Robinson’s practice constituted a breach of section 61B of the Public Health Act, which prohibits the advertising of tobacco products in locations where children are likely to see them. Eureka Operations Pty Ltd argued that the signs were not visible to children and thus did not breach the Act. Dr Robinson, on the other hand, asserted that the signs were indeed visible to children and that this constituted a breach. The court had to decide whether the evidence supported Dr Robinson’s claim and, if so, what the appropriate sentence would be.

The Supreme Court found that the tobacco advertising signs were visible to children and therefore constituted a breach of section 61B. The court emphasised the importance of protecting children from exposure to tobacco advertising, which can encourage them to take up smoking. The court also considered the need to deter such breaches in the future. Consequently, Eureka Operations Pty Ltd was found guilty of contravening section 61B and was fined. The court took into account the company's previous record and the efforts it had made to comply with the Act in determining the fine.

Eureka Operations Pty Ltd was ordered to pay a fine of $10,000 for the breach of section 61B of the Public Health Act. The court also ordered that the tobacco advertising signs be removed from the vicinity of Dr Robinson’s practice within 14 days.

Orders