FEDERAL COURT OF AUSTRALIA
Nixon v Philip Morris (Australia) Ltd [1999] FCA 1107JURISDICTION – 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 87MICHAEL 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 1999WILCOX 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)
ApplicantsAND:
PHILIP MORRIS (AUSTRALIA) LTD and PHILIP MORRIS LTD
First RespondentW D & H O WILLS HOLDINGS LTD and W D & H O WILLS (AUSTRALIA) LTD
Second RespondentAnd
ROTHMANS HOLDINGS LTD and ROTHMANS OF PALL MALL (AUSTRALIA) LTD
Third RespondentJUDGE:
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…
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- Case
- [1999] FCA 1107
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to decide included the availability of exemplary damages in claims under Part V of the Trade Practices Act, the jurisdiction of the court in relation to representative proceedings, and the appropriate date for the accrual of the cause of action. The court also had to determine whether the claims involved common issues of fact or law and whether the plaintiffs' claims were related to the product of a particular respondent. Additionally, the court considered the impact of the plaintiffs' symptoms on the date of accrual of the cause of action.
The court ruled that exemplary damages were not available in respect of a breach of Part V of the Trade Practices Act, but were available in respect of negligence claims falling within the jurisdiction of the court and litigated in representative proceedings pursuant to Part IVA of the Federal Court of Australia Act. The court also dismissed the respondents' motions to strike out the proceeding, and granted leave to the applicants to file and serve a Further Amended Application and Statement of Claim. The court further ordered that the costs of the motions be reserved, and the matter be listed for further directions.
In summary, the court found in favour of the plaintiffs on some issues, but not on others, and granted various orders to allow the proceeding to continue. The final orders included a declaration on the availability of exemplary damages, dismissal of the respondents' motions, and directions for the applicants to file a Further Amended Application and Statement of Claim.
Orders
Orders of the court
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 IVA of the Federal Court of Australia Act 1976.
2. Insofar as the respondents by their Notices of Motion of 2 July 1999 seek the summary dismissal of this proceeding, those motions be dismissed.
3. The Amended Application and Amended Statement of Claim filed on 1 July 1999 be struck out.
4. Leave be granted to the applicants to file and serve a Further Amended Application not later than Friday, 20 August 1999.
5. Not later than Friday, 20 August 1999, the solicitors for the applicants provide to the solicitors for each respondent a draft of a Further Amended Statement of Claim. If by Thursday, 26 August 1999, no objection is taken to that draft by any respondent, on the basis that it raises a problem not hitherto considered or is inconsistent with a ruling or assumption contained in the Reasons for Judgment published on 13 August 1999, the applicants must forthwith file and serve a document in accordance with that draft.
6. The costs of the motions be reserved.
7. The matter be listed for further directions on Tuesday, 31 August 1999 at 10.15am. Any application for leave to appeal against any of the above orders may be made returnable at that time.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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