Nixon and Ors v Philip Morris and Ors

[2000] HCATrans 176

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S38 of 2000

B e t w e e n -

MICHAEL CHRISTOPHER NIXON, ALEX TALAY, ROBERT MILNE, VICTOR BRUCE WILLIAMS, SANDRA SHEPHARD and GREGORY DURKIN (for themselves and as representing the persons referred to in paragraph 1 of the statement of Claim

Applicants

and

PHILIP MORRIS (AUSTRALIA) LTD and PHILIP MORRIS LTD

First Respondents

W.D. & H.O. WILLS HOLDINGS LTD and W.D. & H.O. WILLS (AUSTRALIA) LTD

Second Respondents

ROTHMANS HOLDINGS LTD and ROTHMANS OF PALL MALL (AUSTRALIA) LTD

Third Respondents

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 APRIL 2000, AT 2.33 PM

Copyright in the High Court of Australia

____________________

MR T.K. TOBIN, QC:   If your Honour pleases, I appear with MR B.F. QUINN for the applicants.  (instructed by Slater & Gordon)

MR J.R. SACKAR, QC:   If the Court pleases, I appear for Philip Morris, the first respondents.  (instructed by Arthur Robinson Hedderwicks)

MRS R.A. CHALMERS:  I appear for W. D. & H. O. Wills, the second respondents.   (instructed by Mallesons Stephen Jaques)

MR R.C. TRAVERS:   If the Court pleases, I appear for the third respondents.  (instructed by Clayton Utz)

MR TOBIN:   Your Honour, this is a summons seeking expedition of an application for leave to appeal.  The summons is dated 7 April; filed on 10 April.  There are three affidavits in support of that.  Does your Honour have the affidavit material?

HIS HONOUR:   Yes, I think so.  I will just make sure that I have the facts correct.  The people referred to in them are all ill, is that right?

MR TOBIN:   Yes.

HIS HONOUR:   Have any of them – is there any material to show that they are likely to die at any particular time?

MR TOBIN:   Not with that precision, your Honour.  The evidence shows ‑ ‑ ‑

HIS HONOUR:   How far does the evidence – what is the furthest the evidence goes in the worst case?

MR TOBIN:   The evidence is this, your Honour, that statistically more than 50 per cent of people with lung cancer will die within the first year.

HIS HONOUR:   Just excuse me.  I should have said this at the beginning.  I was a smoker myself during the relevant period.  So far as I am aware, I have not yet been diagnosed with any of those conditions, touch wood.  I should mention that because I suppose it is a matter that may lead you to think that I should not sit on the matter.

MR TOBIN:   Your Honour, if I might say, your Honour looks in very good health from a lay person’s point of view.  I do not know if that is any comfort to your Honour.

HIS HONOUR:   No.  I mentioned it in case anybody wants to take any issue in relation to it.

MR TOBIN:   Well, we do not, your Honour.  As long as your Honour does not have to disclose the brands.

HIS HONOUR:   I saw some familiar ones, I might say.

MR TOBIN:   Your Honour, the issue with regard to the four-named applicants – perhaps I could hand up a schedule from the application itself.  This schedule, your Honour, shows that the first-named applicant has died in the last several months.  Mr Talay and Mr Milne – and their dates of diagnosis are shown there, as are Mr Williams, Ms Shephard and Mr Durkin has died.

HIS HONOUR:   Could I ask you this question:  if you were to obtain a grant of special leave and succeed on your appeal, that would reinstate your class action, is that right?

MR TOBIN:   Yes, your Honour.

HIS HONOUR:   Well, in those circumstances, might it not be that a hearing and a result would take a great deal longer than would be the case if the proceedings were to go ahead with just this group of people? 

MR TOBIN:   Yes.

HIS HONOUR:   In other words, there might be a contradiction in your application.

MR TOBIN:   Your Honour, the problem with that is this, that the cost of conducting litigation for the individuals – and there are four surviving individuals – is prohibitive.  Put another way – and this is one of our points in the special leave application argument that was filed yesterday – if you leave it to individual proceedings, the reality of the situation is that the cost of the litigation is so prohibitive that most people, whether they be the named applicants or the members of a group, if representative proceedings were allowed, would be very unlikely to be able to pursue the case to a remedy, and that is part of the argument that we want to put on the leave application, that if you do not include this large group able to litigate through the IVA procedure, in fact they will not be able to get there.

HIS HONOUR:   What is the attitude of the respondents to the application?

MR SACKAR:   Your Honour, from our point of view, we do not oppose the expedition and there is nothing more we wish to say about it, your Honour.

HIS HONOUR:   I see.  Mrs Chalmers?

MRS CHALMERS:   No, your Honour.

HIS HONOUR:   I think your application seeks the 16th, is that right?

MR TOBIN:   Or an earlier date, your Honour.  We are in this position, that in discussion with the Registry as to what was available, we have understood, and we are subject to correction, that there may be an available position in the May special leave dates, that is, I think, 28 May.

HIS HONOUR:   We can fit you in Brisbane, I think.

MR TOBIN:   Well, your Honour, we would go to where we needed.

HIS HONOUR:   Well, there is no problem about Brisbane.

MR TOBIN:   On that date, your Honour.

HIS HONOUR:   On 22nd, it would be.

MR TOBIN:   On 22 May, yes.

HIS HONOUR:   22 June. 

MR TOBIN:   On 22 June.  Well, your Honour, if that is the soonest date, the nature of our application is such that we obviously must ask for the soonest possible date that the Court can give us and we do that.

HIS HONOUR:   Is there any problem for any of the respondents about that date?

MR SACKAR:   Did your Honour say 22 May?

HIS HONOUR:   22 June.

MR SACKAR:   22 June, I am sorry - - -

HIS HONOUR:   Which would be in Brisbane.

MR SACKAR:   There would be no problem from our point of view of that.

MRS CHALMERS:   No, your Honour.

MR TRAVERS:    No, your Honour.

HIS HONOUR:   Well, I am prepared to make an order that the application for special leave be expedited in order that it be heard during the Brisbane sittings on 22 June next. 

Costs reserved?

MR TOBIN:   Yes, your Honour.

HIS HONOUR:   All right.  I will order that costs be reserved.  Is there anything else?

MR TOBIN:   No, your Honour.

MR SACKAR:   No, your Honour.

HIS HONOUR:   You do not want me to certify for counsel?

MR TOBIN:   If your Honour is prompted to certify for counsel, I will ask your Honour.

HIS HONOUR:   …..especially indebted to the Registrar for that.

MR TOBIN:   I am indebted to the Registrar, your Honour, in anticipation.

HIS HONOUR:   I will certify for counsel.  Nothing further then?

MR TOBIN:   No.

HIS HONOUR:   All right, adjourn the Court until 9 May.

AT 2.40 PM THE MATTER WAS CONCLUDED