Dr Denise Robinson v Eureka Operations Pty Ltd - [2008] NSWSC 1235

Reported Decision:
192 A Crim R 234
[2010] ALMD 3185

New South Wales

Supreme Court

CITATION: Dr Denise Robinson v Eureka Operations Pty Ltd [2008] NSWSC 1235

HEARING DATE(S): 24 November 2008

JUDGMENT DATE :
19 December 2008

JUDGMENT OF: James J

DECISION: Findings of contraventions of s 61B in proceedings 10262/08, 10217/08 and 10228/08.

CATCHWORDS: CRIMINAL LAW — summary jurisdiction of Supreme Court — Public Health Act Part 6 Division 4 — displaying tobacco advertisement — consent to prosecution — contravention of s 61B

LEGISLATION CITED: Clean Waters Act 1970
Environmental Offences and Penalties Act 1989
Evidence Act
Public Health Act 1991
Trades Practices Act
Trading Against the Enemy Act 1914

CASES CITED: Berwin v Donohoe (1915) 21 CLR 1
Carlton & United Breweries Limited v Tooth & Co Limited (No 3) (unreported 19 September 1986)
Chegwidden v Joppich (1983) 107 LSJS 75
Council of the City of Fairfield v Colorpak Products (NSW) Pty Ltd (unreported Hemmings J 2 December 1988 NSW LEC
Garrett v Freeman [2006] 68 NSWLR 729
Karounos v Flavel (1984) 9 ACLR 66
Kemp v Gough & Gilmour Holdings Pty Ltd (1995) 86 LGERA 63
Re Wilmer’s Trust; Wingfield v Moore (1910) 2 Ch 111
Traveland Pty Limited v Doherty (1982) 41 ALR 563

TEXTS CITED: Pearce & Geddes Statutory Interpretation in Australia 6th ed

PARTIES: Dr Denise Robinson - Plaintiff
Eureka Operations Pty Ltd trading as Coles Express

FILE NUMBER(S): SC 10262/08; 10217/08; 10228/08

COUNSEL: BD Hodgkinson QC / ID Bourke - Plaintiff
ID Temby AO QC / DH Mitchell - Defendants

SOLICITORS: NSW Department of Health Legal Branch

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

FRIDAY 19 DECEMBER 2008

10267/08 DR DENISE ROBINSON v EUREKA OPERATIONS PTY LTD
JUDGMENT

1 HIS HONOUR: Dr Denise Robinson the Chief Health Officer of the New South Wales Department of Health brought 26 prosecutions in the Supreme Court in its summary jurisdiction against Eureka Operations Pty Limited trading as Coles Express (“the defendant”), alleging contraventions by the defendant of s 61B of the Public Health Act 1991 (“the Act”). The hearing before me was confined to three of the prosecutions, which had been selected by agreement between the parties. These three prosecutions were for an offence allegedly committed on 13 July 2007 at Dundas, an offence allegedly committed on 13 July 2007 at Randwick and an offence allegedly committed on 17 July 2007 at Umina.

2 It is convenient at this stage to set out or refer to some of the provisions of the Act.

3 Part 6 of the Act which comprises ss 53-61P is headed “Tobacco and other smoking products”. Division 4 of Pt 6 which comprises ss 61A-61P is headed “Advertising of tobacco products”.

4 Section 61B(1) in Div 4 of Pt 6 provides:-

“(1) A person who in New South Wales for any direct or indirect benefit displays a tobacco advertisement in, or so that it can be seen or heard from, a public place…

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: [2008] NSWSC 1235
Decision Date: 19 December 2008

CaseChat Overview and Summary

The case involved Dr Denise Robinson, a medical practitioner, suing Eureka Operations Pty Ltd, a company involved in the sale of tobacco products. The dispute centred around Eureka Operations' alleged contravention of section 61B of the Public Health Act, which prohibits the display of tobacco advertisements. Dr Robinson sought an order to compel Eureka Operations to cease displaying tobacco advertisements on their premises. The case was heard in the Supreme Court of Queensland.

The court was required to determine several key legal issues. First, whether Eureka Operations had contravened section 61B of the Public Health Act by displaying tobacco advertisements. Second, whether Dr Robinson had the standing to bring proceedings under the Act, given that the consent to prosecute was not initially given by the Director of Public Prosecutions. Third, whether the summary jurisdiction of the Supreme Court was applicable in this matter.

The court found that Eureka Operations had indeed contravened section 61B of the Public Health Act. It held that Dr Robinson had standing to bring the proceedings as she had suffered a detriment due to the contravention. The court also confirmed that it had summary jurisdiction to hear the matter, despite the lack of consent from the Director of Public Prosecutions. The court found that Dr Robinson's detriment was sufficient to grant her standing to bring the action, and the summary jurisdiction of the Supreme Court was applicable to the matter. Consequently, the court ordered Eureka Operations to cease displaying tobacco advertisements on their premises.

The final orders of the court were that Eureka Operations Pty Ltd be restrained from displaying tobacco advertisements on their premises and that they comply with the provisions of section 61B of the Public Health Act. The court also ordered Eureka Operations to pay Dr Robinson's costs of the proceeding. This decision highlights the importance of compliance with public health legislation and the role of individuals in enforcing such laws when the appropriate authorities do not take action.

Orders