Nixon v Philip Morris (Australia) Ltd

FEDERAL COURT OF AUSTRALIA
Nixon v Philip Morris (Australia) Ltd [1999] FCA 1107

JURISDICTION – Representative proceedings – Allegation of breach of s52 of Trade Practices Act and of negligence in connection with promotion of the sale of cigarettes – Whether negligence claim is within the accrued jurisdiction of the Federal Court – Whether common issues are hypothetical questions so that the proceeding is not in relation to a “matter”.

REPRESENTATIVE PROCEEDINGS – Requirement that “7 or more persons have claims against the same person” – Whether claims must be established at time of institution of action – Whether it is necessary for applicants to relate their disease to the product of a particular respondent – Whether claims arose out of “the same, similar or related circumstances” – Whether claims involve common issues of fact or law – Whether exemplary damages are available in representative proceedings – Whether a class may be described by reference to elements that include a subjective element.

LIMITATION OF ACTIONS – Date on which “cause of action accrued” – Date of damage – Whether this was before manifestation of any symptoms – Observations on the inappropriateness of determining date of accrual of cause of action on strike out application.

DAMAGES – Exemplary damages – Whether exemplary damages are available in claims under Part V of the Trade Practices Act - Whether exemplary damages are available in a representative proceeding under Part IVA of the Federal Court of Australia Act.

Federal Court of Australia Act 1976, ss 22, 32, 33C and 33Z.
Trade Practices Act 1974, ss52, 82 and 87

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
13 AUGUST 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:

13 AUGUST 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.It be declared that, as a matter of law, exemplary damages:

(a)are not available in respect of a breach of Part V of the Trade Practices Act 1974;

(b)are available in respect of negligence claims falling within the jurisdiction of the Court and litigated in representative proceedings pursuant to Part…