United States Tobacco Co v The Minister for Consumer Affairs

[1988] FCA 360

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G158 of 1988

) No. G769 of 1988

DIVISION GENERAL )

BETWEEN:  UNITED STATES TOBACCO

COMPANY

Appllcant

AND:  - THE MINISTER FOR CONSUMER
AFFAIRS

Flrst Respondent

AND :	THE	TRADE	PRACTICES
-

COMMISSION

Second Respondent

CORAM:	FOSTER, J.
DATE :	6 MAY, 1988.
PLACE :	SYDNEY.
costs the Notice of Motlon of the present appllcant seeqlrq

REASONS FOR JUDGMENT

(EXTEMPORE)

H IS HONOUR: This 1s an application for le ave to appeal f r m lnterlocutory o r d e r s of Einfeld, J. made on 28 March ani 7 Aprll of thls year. By these orders hls Honour dlsrnlssed x’lth

orders restralning the second respondent from proceedlng wlth

the conference pursuant to S. 65J of the Trade Practices Act,

1974 concernlng the proposal of the Mlnlster for Consumer

Affairs to declare certain tobacco products	to be unsafe goods,
before determlnatlon	of the proceedlngs or further order;
alternatlvely, an order pursuant	to S. 15 of the Admlnistratlve
Decislons (Judicial Review) Act, 1977 staying	the conference.

The conference pursuant to the Trade Practlces Act,

1974 ("the Act") had been requested by the applicant following

on a notice publlshed In the gazette by the first respondent,

the Minister for Consumer Affairs, on 14 January, 1988 pursuant

to s s . 65C and 655 of the Act, In whlch he notlfled hls

proposal to declare certaln oral smokeless tobacco products of

the applicant to be unsafe goods within the meanlng of that

sectlon. The conference had been requested on a wlthout prejudice basis as the applicant contended that the Minlster lacked power to make the relevant declaratlon and the second respondent, the Trade Practlces Commisslon, also lacked power to hold the conference.

In support of these contentlons the applicant

commenced proceedings ln this Court seeklng declaratory and

~ n ~ u n c t l v e relief under the general law and also under the

Adminlstrative Declsions (Judicial Review) Act, 1977. These

proceedings have been	the sublect of dlrectlons hearlngs	in the
Court and are in	process of belng prepared for trlal.	If

\. .

3.

successful they wlll brlng to an end or avold the effects of the notlflcation under S . 65C and also the conference under S.

655 of the Act. In the meantlme, apparently as a result of

mrnlsterlal decislon, the conference 1s golng ahead.

The proceedings brought by the applicant before

Einfeld, J. had the purpose of obtalning lnterlocutory orders halting the conference pending the determlnation of the issues

raised	in the substantive proceedings In thls Court. The
principal grounds to	be argued ln those proceedlngs were argued

Einfeld, before J . we These re : -

(a) that the reasons put forward by the Mlnlster :n
support of the notlce publlshed pursuant to S . 6 5 J 3 - d
not permit the characterlsatlon of the appllcant's
goods as belng goods "that will or may cause lnlury to
any person" wlthln the meanlng of S . 65C(5) of the Act,

and

( b ) that S.	65C and S . 65J and indeed, the sectlons
associated with them ln	the Act, were invalid and of n o

effect as belng ultra vlres the leglslatlve powers of

the Commonwealth Parliament.

Einfeld, J. held that on any test ordlnarlly applicable

to the granting of lnterlocutory rellef he was not satlsfleo that

such relief should be granted. He was not satlsfled that 1: .&.as

demonstrated that there was a serlous question	to be trled
either ground or any arguable polnt of substance. He would	a l s o

have dismissed the motion on discretionary grounds on the basis,
inter alia, that the balance of convenience did not favour the

applicant.

The application before me is for leave to appeal from

that decision to the Full Court of this Court. Although	it has
not been submitted that there are any definite fetters upon	the

granting of leave, it is clear that I must have regard to the

prlnclples which will govern the deliberations of the Full Court

itself in deciding whether to allow appeals from this

interlocutory decision. These principles are set out In Adam P.

Brown Male Fashion Proprietary Ltd. v. Phlllp Morris Incorporated

& Anor., 148 C.L.R. 170 at p. 177, where the High Court says:-

"An interlocutory order for an in]unctlon is a

matter of practice and procedure. See McHarg v.

Universal Stock Exchange Ltd. (1895) 2 Q.B. 81, at p.

82; Minister for the Army v. Parbury Henty and Co. Pty.
Ltd. (1945) 7 0 C.L.R. 459, at p. 489; White v. Whlte

(1947) V.L.R. 434, at p. 438.

Nor is there any serious dispute between the

parties that appellate courts exercise particular

caution in reviewing decisions pertaining	to practice
and procedure. Counsel	for Brown urged that speciflc

cumulative bars operate to guide appellate courts in

the discharge of that task. Not only must there be

error of principle, but the decision appealed from must

work a substantial injustice to one of the parties.
The opposing view is that such crlterla are to	be

expressed dis~unctlvely. Cases can be cited in support

of both views: for example, on the one	hand, Niemann
v . Electronic Industries Ltd. (1978) V.R.	431, at p.
440; on the other hand, De Mestre	v. A.D. Hunter Pty.

Ltd. (1952) 77 W.N. 9N.S.W.0 143, at p. 146. For ourselves, we believe it to be unnecessary and indeed

unwise to lay down rlgid and exhaustive criteria. The

circumstances of different cases are infinitely
various. We would merely repeat, wlth approval, the
oft-cited statement of Sir Frederick Jordan in In re

the Will of F.B. Gllbert (dec.) (1946) 46 S.R. (N.S.W.)

318, at p. 323:

I

5 .

difference between an exerclse of dlscretlon on a point I' . . . I am of oplnlon that, ... there IS a materlal

of practlce or procedure and an exerclse of dlscretlon

whlch determlnes substantlve rlghts. In the former

class of case, ~f a tlght rein were not kept upon

Interference wlth the orders of Judges of flrst

instance, the result would be dlsastrous to the proper

administration of ~ustlce. The dlsposal of cases could
be delayed lntermlnably, and costs heaped up

lndeflnltely, lf a lltlgant wlth a long purse or a

litigious dlsposltlon could, at will, 1n effect

transfer all exercises of discretion In lnterlocutory

appllcations from a Judge in Chambers to a Court	of
Appeal. "

See also, Brambles Holdings Ltd. v. Trade Practices

Commlssion, (1979) 4 0 F.L.R. 3 6 4 , at p. 3 6 5 ; 2 8 A.L.R.

191, at p. 1 9 3 . Dougherty v. Chandler (1946) 46 S.R.

(N.S.W.) 3 7 0 , at p. 3 7 4 . It is safe to say that the

questlon of ln~ustice flowlng from the order appealed

from will generally be a relevant and necessary

conslderation."

As I see it, I have to determlne whether the applicant

has shown a reasonable prospect that	the Full Court, havlng
regard to these princlples,	would reverse the declslon of

Einfeld, J. and grant the interlocutory rellef sought. These proceedings before me are not, of course, an appeal from Elnfeld,

J. to myself and It 1 s nelther necessary nor deslrable that I

embark in these reasons upon an extensive conslderatlon of the

reasons glven by his Honour for refuslng the appllcant's motlon.

As to the claim that the Mlnlster and the Trade

Practlces Commisslon lacked the relevant power,	I am satlsfled
that leave should not be granted. The declslon of	the Ul9h Court
1n The Commonwealth v. Tasmanla the Tasmanian Dams Case,	1 8 5

C.L.R. 1, would qulte clearly, ln my respectful v ~ e w , lead the

Full Court to hold, at least at an lnterlocutory level, that	S.
65C must, prima facie,	be regarded as properly enacted under S.
51(xx) of the Constitution. Even though	lt deals also wrth
matters of health and consumer protection (see,	for instance, per
Mason, J . at pages 151 and 153).

Moreover, the proceedings being interlocutory only,

regard would necessarily have	to be paid to the principles
expressed, inter alia, in Richardson v.	Forestry Commission &
Anor., 7 3 A.L.R.	589 at p. 600, where the Chief Justice says:-

"what I have lust said conforms to the general

principle that, in the absence of compelling grounds,

it is the duty of the court to respect, lndeed, to

defer to the enactment of the legislature untll that

enactment 1s ad~udged ultra vires: Castlemalne Tooheys

Ltd. v. South Australia (1986) 60 A.L.J.R. 6 7 9 ; 6 7

A.L.R.	553; Davids Holdings Pty. Ltd. v. Byrnes ( 1 9 8 7 )
71 A.L.R. 251.	Furthermore, the application of this

principle forecloses the issue of balance of

convenience in favour of the plaintiff."

Accordingly, I can see no reasonable ground for

granting leave to appeal in respect of this aspect of the case.

In relation to the applicant's claim that the materla1

furnished in the Minister's reasons pursuant to S. 6 5 3 of the Act

indicates that no ground I S shown for the application of S. 65C

for the applicant's product, the situation is, in my view, not so

clear. The Minister may by notice declare the goods to be

"unsafe goods" wlth the consequences that follow, lf it "appears to the Minister" that the goods "wrll or may cause lnjury to any person".

l .

The applicant argued before Elnfeld, J. and before me,

that "injury" must be given a restricted meanlng. Rellance was

placed upon cases such as Favell Mort Pty. Ltd. v. Murray, 1 3 3

C.L.R. 5 8 0 , and Amerlcan Home Assurance Co. v. Saunders, 4 A . X . Z .

Insurance Cases, p. 75,000, for the submission that the word "injury" in this leglslation, as in other leglslatlve and contractual situations, should Involve the concept of some

invasion or intruslon Into a person's physlcal being of some

extraneous substance, force or factor.

As such, "in]ury" is to be contrasted wlth "dlsease" or

"lllness" whlch may	be of autogenous or idiopathic or1g.n
Support is asserted for thls submisslon from	the wordlng of 5
65L where the phrase "risk	of serlous lllness or serious ln~ury"
appears, lt being put that	the legislature, by its use of these
two terms in contrast, must have contemplated the	restrlctI.de
meaning of the word "inlury".

This is, no doubt, an arguable proposltlon. However,

there was no factual material before Elnfeld, J. nor before I? 1'1

ths application to lndlcate that the applicant's product was

Incapable of physlcally invaslve actlvlty. Moreover, S . 65C(5)

requlres only that It appear to the Mlnlster that the goods "Tay

cause ln~ury". Clearly, ~n such clrcumstances, actual	lnvasl-;E
or intrusive characterlstics do not have	to be firmly

established, at least at an lnterlocutory level.

I must have very conslderable hesltatron as to whether

there 1s indeed an arguable polnt of substance disclosed for the

conslderatlon of the Full Court. Furthermore, ~t is apparent

that the conference proceedlngs are now well advanced. So far as

can be ascertained, it would appear that they would, ln all probability, conclude before the appeal could be heard by the Full Court. Also, there would appear to be nothing to prevent an

expeditious hearing of the substantive proceedings when these

issues can be fully litigated and finally disposed of.

In all the clrcumstances, I am satlsfled that no

satlsfactory basls exlsts for the grantlng of leave. Leave	1 s
refused.

The Notice of Motion	1 s dlsmissed wlth costs
I wlll direct that the substantlve proceedlngs	be

placed in the directlons list next Frlday, 13 May, 1988.

I certify that this and the 7 preceding

pages are a true copy of the reasons for ludomenc

hereln of his Honour, Mr. Justlce M.L. Foster.

Dated: 18 July, 1988.