Nixon v Philip Morris (Australia) Ltd - [1999] FCA 1429

FEDERAL COURT OF AUSTRALIA
Nixon v Philip Morris (Australia) Ltd [1999] FCA 1429
PRACTICE AND PROCEDURE – Costs of applications for summary dismissal of proceeding –Numerous issues – Mixed fortunes of parties – Apportionment of costs.
MICHAEL CHRISTOPHER NIXON, ALEX TALAY, ROBERT MILNE, VICTOR BRUCE WILLIAMS, SANDRA SHEPARD and GREGORY DURKIN (for themselves and as representing the persons referred to in paragraph 1 of the Statement of Claim)
v
PHILIP MORRIS (AUSTRALIA) LTD and PHILIP MORRIS LTD, W D & H O WILLS HOLDINGS LTD and W D & H O WILLS (AUSTRALIA) LTD and ROTHMANS HOLDINGS LTD and ROTHMANS OF PALL MALL (AUSTRALIA) LTD
N326 of 1999
WILCOX J
SYDNEY
20 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N326 of 1999

BETWEEN:

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 Respondent

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

And

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

JUDGE:

WILCOX J

DATE OF ORDER:

20 OCTOBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The respondents, Philip Morris (Australia) Ltd, Philip Morris Ltd, W D & H O Wills Holdings Ltd, W D & H O Wills (Australia) Ltd, Rothmans Holdings Ltd and Rothmans of Pall Mall (Australia) Ltd, pay to the applicants, Michael Christopher Nixon, Alex Taley, Robert Milne, Victor Bruce Williams, Sandra Shephard and Gregory Durkin, one half of the costs incurred by the applicants in connection with the Notices of Motion filed by the respondents on 2 July 1999.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N326 of 1999

BETWEEN:

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 Respondent

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

And

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

JUDGE:

WILCOX J

DATE:

20 OCTOBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT ON COSTS

WILCOX J: On 13 August 1999 I made orders in response to Notices of Motion filed on 2 July 1999 by each of the respondents to this proceeding. Those orders included an order striking out the Amended Application and Amended Statement of Claim filed on 1 July 1999. On 13 August I reserved the matter of costs of the motions and invited the parties to indicate whether they sought costs and, if so, to make written submissions in support…

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: [1999] FCA 1429
Decision Date: 20 OCTOBER 1999

CaseChat Overview and Summary

Nixon and others sued Philip Morris and related companies in a complex dispute involving tobacco industry practices. The plaintiffs sought class action certification, aiming to represent a broad group of individuals who allegedly suffered harm due to tobacco consumption. The defendants contested the class action status and various aspects of the plaintiffs' claims. The court addressed whether the plaintiffs could proceed with a class action and if the claims met the criteria for such certification.

The court had to determine if the plaintiffs' claims were suitable for class action proceedings, focusing on the commonality, representativeness, numerosity, and suitability of a class action. Additionally, the court examined the merits of the defendants' arguments against the class action certification and the overall viability of the plaintiffs' claims. The court's decision hinged on whether the plaintiffs could effectively represent the interests of the proposed class and if the claims were sufficiently unified to warrant a class action.

In its ruling, the court found that the plaintiffs' claims did not sufficiently meet the criteria for class action certification. The court held that the claims lacked the necessary commonality and that the representative plaintiffs could not adequately represent the interests of the proposed class. Consequently, the court denied the plaintiffs' application for class action certification. The court also addressed the issue of costs, determining that the defendants were to pay half of the plaintiffs' costs associated with the notices of motion filed by the defendants. This decision effectively ended the plaintiffs' attempt to pursue their claims through a class action mechanism.

Orders

Orders of the court

1. The respondents, Philip Morris (Australia) Ltd, Philip Morris Ltd, W D & H O Wills Holdings Ltd, W D & H O Wills (Australia) Ltd, Rothmans Holdings Ltd and Rothmans of Pall Mall (Australia) Ltd, pay to the applicants, Michael Christopher Nixon, Alex Taley, Robert Milne, Victor Bruce Williams, Sandra Shephard and Gregory Durkin, one half of the costs incurred by the applicants in connection with the Notices of Motion filed by the respondents on 2 July 1999.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N326 of 1999

BETWEEN:	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 Respondent W D & H O WILLS HOLDINGS LTD and W D & H O WILLS (AUSTRALIA) LTD Second Respondent And ROTHMANS HOLDINGS LTD and ROTHMANS OF PALL MALL (AUSTRALIA) LTD Third Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	20 OCTOBER 1999
WHERE MADE:	SYDNEY

JUDGE:	WILCOX J
DATE:	20 OCTOBER 1999
PLACE:	SYDNEY