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

  1. 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…

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Details
Case
[1999] FCA 1281
Decision Date

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

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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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