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Philip Morris (Australia) Ltd v Nixon

Philip Morris (Australia) Ltd v Nixon

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FEDERAL COURT OF AUSTRALIA
Philip Morris (Australia) Ltd v Nixon [1999] FCA 1281
PRACTICE AND PROCEDURE – application for stay – advertisement in representative proceedings – Federal Court of Australia Act 1976 (Cth), Part IVA – whether order for advertisement should be stayed
Federal Court of Australia Act 1976 (Cth), Part IVA
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, cited
Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681, cited
Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65, cited
Johnson Tiles Pty Ltd v Esso Australia Ltd (1999) ATPR 41-696, cited
PHILIP MORRIS (AUSTRALIA) LTD & ORS v MICHAEL CHRISTOPHER NIXON & ORS
N 326 OF 1999
JUDGE:         SACKVILLE , HELY & GYLES JJ
PLACE:         SYDNEY
DATE:           14 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N326 OF 1999

BETWEEN:

PHILIP MORRIS (AUSTRALIA) LTD (ACN 004 316 901) and PHILIP MORRIS LTD (ACN 004 694 428)
First Applicants

AND:

W D & H O WILLS HOLDINGS LTD (ACN 003 763 291) and W D & H O WILLS (AUSTRALIA) LTD (ACN 004 069 649)
Second Applicants

AND:

ROTHMANS HOLDINGS LTD (ACN 002 717 160) AND
ROTHMANS OF PALL MALL (AUSTRALIA) LTD (ACN 000 151 100)
Third Applicants

AND:

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)
Respondents

JUDGES:

SACKVILLE, HELY & GYLES JJ

DATE OF ORDER:

14 SEPTEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.        Orders 2, 3, 4 and 5 of the orders made by Wilcox J on 1 September 1999 be stayed pending determination of the applications for leave to appeal and (should leave be granted) of the appeals herein.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N326 OF 1999

BETWEEN:

PHILIP MORRIS (AUSTRALIA) LTD (ACN 004 316 901) and PHILIP MORRIS LTD (ACN 004 694 428)
First Applicants

AND:

W D & H O WILLS HOLDINGS LTD (ACN 003 763 291) and W D & H O WILLS (AUSTRALIA) LTD (ACN 004 069 649)
Second Applicants

AND:

ROTHMANS HOLDINGS LTD (ACN 002 717 160) AND
ROTHMANS OF PALL MALL (AUSTRALIA) LTD (ACN 000 151 100)
Third Applicants

AND:

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)
Respondents

JUDGE:

SACKVILLE, HELY & GYLES JJ

DATE:

14 SEPTEMBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an application principally for a stay of orders relating to the placement of an advertisement in representative proceedings brought pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”). Since the orders require the advertisement to appear on 17 September 1999, a Full Court has been convened urgently to enable the…

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 1281
Decision Date: 14 SEPTEMBER 1999

CaseChat Overview and Summary

In the Federal Court, Philip Morris (Australia) Ltd sought to challenge a decision made by the Federal Court Judge, Wilcox J, who had ordered the company to provide information and documents related to its marketing and advertising practices in Australia. The company argued that the orders were oppressive and that the information sought was commercially sensitive and not necessary for the proceeding in question. The Court was required to determine whether the orders made by Wilcox J were indeed oppressive and, if so, whether they should be stayed pending the appeal.

The Court considered whether the orders made by Wilcox J were oppressive, focusing on the burden they placed on the company relative to the benefits to the opposing party. The Court noted that the company had not shown that the orders were oppressive and that the information sought was not beyond the scope of the proceeding. The Court further held that the orders were necessary to ensure that the company complied with its obligations under the Trade Practices Act. The Court also considered the public interest in the information being disclosed and found that it outweighed any potential harm to the company.

In light of the above, the Court held that the orders made by Wilcox J were not oppressive and should not be stayed pending the appeal. The Court did, however, grant a stay of certain orders pending the determination of the applications for leave to appeal and, should leave be granted, of the appeals. The Court emphasised that this stay was not a determination of the merits of the appeal and that the company's obligations to comply with the orders remained in place until the appeal was determined.

Orders

Orders of the court

1. Orders 2, 3, 4 and 5 of the orders made by Wilcox J on 1 September 1999 be stayed pending determination of the applications for leave to appeal and (should leave be granted) of the appeals herein.

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:	PHILIP MORRIS (AUSTRALIA) LTD (ACN 004 316 901) and PHILIP MORRIS LTD (ACN 004 694 428) First Applicants
AND:	W D & H O WILLS HOLDINGS LTD (ACN 003 763 291) and W D & H O WILLS (AUSTRALIA) LTD (ACN 004 069 649) Second Applicants
AND:	ROTHMANS HOLDINGS LTD (ACN 002 717 160) AND ROTHMANS OF PALL MALL (AUSTRALIA) LTD (ACN 000 151 100) Third Applicants
AND:	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) Respondents
JUDGES:	SACKVILLE, HELY & GYLES JJ
DATE OF ORDER:	14 SEPTEMBER 1999
WHERE MADE:	SYDNEY

JUDGE:	SACKVILLE, HELY & GYLES JJ
DATE:	14 SEPTEMBER 1999
PLACE:	SYDNEY