FEDERAL COURT OF AUSTRALIA
Lindsey v Philip Morris Limited [2004] FCA 9
TRADE PRACTICES – Whether, in the circumstances, a failure to warn could constitute misleading or deceptive conduct – warnings about health risks required by law - conduct before the Trade Practices Act came into force - damages for lung disease and other conditions claimed – causation not pleaded – negligence – promotion merely puffery
PRACTICE AND PROCEDURE – application for summary judgment – no reasonable cause of action disclosed – whether frivolous or vexatious or an abuse of process of the Court
Trade Practices Act 1974 (Cth) ss 52 and 82
Federal Court of Australia Act 1976 (Cth) s 56
Federal Court Rules 1979 (Cth) O 20 r 2General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applied
Bell Wholesale Co Ltd v Gates Export Corporation (No 2) (1984) 2 FCR 1 referred to
Equity Access Pty Ltd v Westpac Banking Corporation (1989) 16 IPR 431; (1990) 12 ATPR 40, 994 referred to
Jodast Pty Ltd v A & J Blattner Pty Ltd (1991) 104 ALR 248 referred to
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 referred to
Webster v Lampard (1993) 177 CLR 598 referred to
McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 applied
Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458 considered
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 referred to
Stenhouse v Coleman (1944) 69 CLR 457 referred to
Gerhardy v Brown (1985) 159 CLR 70 referred to
Holland v Jones (1917) 23 CLR 149 referred to
Commonwealth Shipping Representative v P & O Branch Service [1923] AC 191 referred to
All States Frozen Foods Pty Ltd v Commissioner of Taxation (1990) 21 FCR 457 referred to
Australian Oil Refining Pty Ltd v Bourne (1980) 28 ALR 529 referred to
General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 applied
Pappas v Soulac (1983) 50 ALR 231 applied
Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd (1998) 155 ALR 714 considered
Rosenberg v Percival (2001) 205 CLR 434 referred to
San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 referred to
Cauvin v Philip Morris Limited [2003] NSWSC 1225 distinguished
Attorney-General for the State of Victoria v Lindsey (unreported, Supreme Court of Victoria, Kellam J, 16 July 1998) referred toRe Sjostrom-Clemens-Lindsey [2003] VSC 94 referred to
Sjostrom-Clemens-Lindsey v Attorney General for the State of Victoria [2003] VSC 132 referred to
Attorney-General v Lindsey [2003] VSC 176 referred toJ D Heydon, Cross on Evidence (6th edition, Butterworths, Sydney, 2000)
DAVID JAMES LINDSEY (NOW KNOWN AS DAVID JAMES SJOSTROM-CLEMENS-LINDSEY) v PHILIP MORRIS LIMITED (ACN 004 694 428)
V 408 of 2003KENNY J
21 JANUARY 2004
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 408 OF 2003
BETWEEN:
DAVID JAMES LINDSEY (NOW KNOWN AS DAVID JAMES SJOSTROM-CLEMENS-LINDSEY)
APPLICANT
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- Case
- [2004] FCA 9
- Decision Date
CaseChat Overview and Summary
The court considered the statutory requirement for cigarette packets to carry health warnings from 1973 onwards, and noted that such warnings were indeed present on the packets distributed by Philip Morris. Given this, the court found that it would not be open to find that Philip Morris failed to warn potential smokers of the health risks, as required warnings were already in place. The court concluded that Mr Lindsey's claim was not supported by the evidence and was, therefore, frivolous. Accordingly, the court dismissed the proceeding and ordered Mr Lindsey to pay Philip Morris' costs.
This decision underscores the importance of ensuring that claims brought before the court are supported by adequate evidence and legal basis. The court's dismissal of Mr Lindsey's claim as frivolous highlights the principle that the court's resources should not be wasted on baseless or unsubstantiated claims.
Orders
Orders of the court
1. The motion for security for costs, notice of which was filed on 18 August 2003, be adjourned sine die.
2. There be no order as to the costs of the motion for security for costs.
3. Pursuant to O 20, r 2 of the Federal Court Rules, the proceeding be dismissed.
4. The applicant pay the respondent’s costs of the proceeding, including the costs of the motion for summary judgment, notice of which was filed 18 August 2003.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: KENNY J
Mr Lindsey alleges that, in 1972 or 1973, Philip Morris was “fully aware and knowledgeable of the foreseeable health risks associated with [his] longstanding smoking of it’s [sic] Imported Tobacco Product known as Marlboro (filter cigarettes) and did with hold [sic] from [him] such knowledge”. His further (verbatim) pleading is that:FURTHER and on the alternative the Applicant also asserts and alleges that the outer packaging of the Respondents Imported Tobacco Product as well as it’s locally made Tobacco Product prior to the 1990’s DID NOT HAVE inscribed upon them distinguishable well defined bold lettering warning the Applicant of the foreseeable health risks associated with the longstanding smoking of the Respondents Imported Tobacco Product as well as it’s locally made Tobacco Product, despite the fact the Respondent was fully knowledgeable and aware of the foreseeable health risks and dangers prior too 1972 or 1973 when the Applicant first started smoking the Respondents Tobacco Products.BY reason of the aforesaid matters as outlined …, the Respondent by not revealing to the Applicant the foreseeable health risks associated with the longstanding smoking of it’s Imported Tobacco Product in 1972 or 1973 and again in late 1987 regarding its locally made Tobacco Product the Respondent did wilfully contribute to the Applicants smoking related Lung Disease and Secondary Problems.FURTHER and alternatively for completeness the Respondent by not advising the Applicant before commencing to smoke it’s Imported Tobacco Product in 1972 or 1973 was an act of deceptiveness committed by the Respondent towards the Applicant as the Applicant not knowing any different at the age of about 14 years was mislead into believing it was safe to do so by the Respondents promotion of it’s Imported Tobacco Product.BY reason of the aforesaid matter … the Respondent in 1972 or 1973 did engage in conduct in Trade and Commerce which was misleading deceptive did mislead and deceived, (Section 52(1), PART V, Trade Practices Act of 1974.BY reason of the aforesaid matters the Applicant did has been and still is suffering damage.consideration of summary judgment application The Court will only dismiss or stay a proceeding under O 20 r 2 in a very clear case. In General Steel, at 128-129, Barwick CJ accepted that “the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion”. The standard of satisfaction required for summary judgment is that stated in General Steel at 129-130: see also Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J and Webster v Lampard (1993) 177 CLR 598 at 602-603 per Mason CJ, Deane and Dawson JJ. Upon examination of Mr Lindsey’s claim, I am persuaded, for the reasons set out below, that it is appropriate to terminate the proceeding before trial.