United States Tobacco Company v Minister for Consumer Affairs

[1989] FCA 359

d- -

LIMITED DISTRIBUTION

PRACTICE AND PROCEDURE - Interrogatories - appllcatlon for leave

to appeal from interlocutory judgment - whether declslon attended

wlth sufficient doubt to warrant reconsideration - whether any

substantlal lnjustlce arlses.

-	ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977
TRADE PRACTICES ACT 1974
UNITED STATES TOBACCO COMPANY v MINISTER FOR CONSUMER AFFAIRS & ORS.
NG 158 of 1988
LOCKHART J.
SYDNEY
2 MAY 1989

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) NO. NG158 of 1988
1
GENERAL DIVISION	)

BETWEEN:  UNITED STATES TOBACCO
COMPANY

Applicant

AND :  MINISTER FOR CONSUMER
AFFAIRS & ORS.

Respondent

JUDGE MAKING ORDER:	LOCKHART J.
WHERE ORDER MADE:	SYDNEY
DATE ORDER MADE:	2 MAY 1989

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.    The motion be dismissed;

2.    The applicant pay the respondent's costs of the motion.

NOTE:  Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	) NO. ~ G 1 5 8 of 1988
GENERAL DIVISION

BETWEEN:  UNITED STATES TOBACCO
COMPANY

Applicant

AND :  MINISTER FOR CONSUMER
AFFAIRS & ORS.

Respondent

2 May 1989

REASONS FOR JUDGMENT

LOCKHART J.

This is a motion for leave to appeal from a judgment of a single Judge of this Court (Einfeld J.) whereby his Honour	dismissed a motion by the applicant, the United States
Tobacco Company, for leave to interrogate the first respondent, the Minister for Consumer Affairs.

W

The applicant, an American company, manufactures smokeless tobacco products for oral use which it exports to various countries including Australia.

The case arises out of a notice in the Gazette of 14 January 1988 pursuant to sub-S. 65J(1) of the Trade Practices Act 1974 in which the first respondent notified his intention to declare certain oral smokeless tobacco products to be unsafe goods within the meaning and for the purposes of S. 65C of that Act. The effect of a declaration pursuant to that sub-section is to make it an offence for a corporation to supply the relevant goods in trade or commerce.

The applicant commenced these proceedings in February last year seeking declaratory and injunctive relief under the general law and under the Administrative Decisions (Judicial Review) Act 1977 (the "Judicial Review Act"). Included in the applicant's amended statement of claim is an allegation that the grounds advanced by the first respondent in the Gazette notice do not permit the characterisation of the goods as goods which could appear to him to be goods which will or may cause injury within the meaning of the word injury in sub-S. 65C(5) of the Trade Practices Act. It is

was enacted beyond the constitutional powers of the	further alleged that if that Act were held to go so far, it
Commonwealth Parliament. The amended statement of claim also raises various grounds of review of the relevant decision of the first respondent pursuant to ss. 5 and 6 of the Judicial S Review Act.
Einfeld J. heard more than one interlocutory application in this matter; then he came to deal with the motion for leave to administer interrogatories with which the motion before me is concerned. His Honour gave reasons for judgment whrch have been the subject of challenge before the Court today. I see no purpose in summarising all the arguments that have been carefully advanced by counsel for both parties
in relation to the matter.
It is, I think, sufficient for present purposes to say that the applicant's challenge to Einfeld J.'s judgment is based on a number of grounds including the following:
First, it is said that his Honour's statement of reasons is insufficient in that it does not deal with all the substantial arguments that were put to him and leaves the applicant to wonder or guess at what truly underlay the conclusions reached by his Honour which were unfavourable to the applicant;
Second, it is said that the reasons of his Honour demonstrate various errors in law;
TXird, it is said that a question of importance arises because the judgment appealed from demonstrates a failure to appreciate the difference between a statement under S. 13 of the Judicial Review Act and a motion to interrogate a party v to legal proceedings. In particular, the applicant seeks to challenge his Honour's findings that certain of the interrogatories are so wide as to preclude any meaningful answer and that the interrogatories are irrelevant and oppressive and cannot support the case made out in the amended statement of claim. Exception is also taken to the last sentence of his Honour's reasons for judgment to whlch I shall refer in a moment.
The relevant principles governing motions for leave to appeal from interlocutory judgments are well established and have been referred to in many of the reported cases. It is sufficient if I refer to the judgment of a Full Court of this Court in National Mutual Holdings Pty. Limited v Sentry Corporation (1988) 83 ALR 434 at 440 where the Full Court quoted the following passage from the well-known judgment of the High Court in Adam P. Brown Male Fashions Pty. Limited v Philip Morris Incorporated (1981) 148 CLR 170, at p. 177:

"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 specific 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 criteria are to be expressed	disjunctively. . . . For ourselves, we believe it to	be unnecessary and indeed unwise to lay down rigid
aad exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec) (1946) 46 SR(NSW) 310 at 323:

I . . . I am of opinion that, . . . thkre

is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous t o the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of

discretion in interlocutory

applications from a Judge in
Chambers to a Court of Appeal.'"

As was observed by the Full Court in Sentry Corporation, that passage from the High Court's judgment incorporating, by reference, Sir Frederick Jordan's famous statement, has since been followed by Full Courts and single Judges of this Court in various cases. Those principles, in my opinion, are the relevant principles to apply in this case and I agree with

the further formulation of principle by Burchett J. in Sharp

v Deputy Federal Commissioner of Taxation (1988) 88 ATC 4184
where his Honour said, at 4186:

"So far as the prospects of the proposed appeal are concerned, I take the test to be whether, in all the circumstances, the declsion is attended with sufficient doubt to warrant its being reconsidered by the Full Court. Niemann's Case is authority

stated in that case is whether substantial for this view. The second major consideration	injustice would result if leave were refused,
supposing the decislon to be wrong."

His Honour went on to observe that the question of substantial injustice would be particularly likely to work in favour of an applicant if the interlocutory decision is in effect final. According to Burchett J. the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated into separate compartments. Rather these considerations bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. The discretion must ultimately be exercised on what may be a fine balancing of considerations.

Applying these principles to this case, I am not satisfied that the decision of Einfeld J. is attended with sufficient doubt to warrant its reconsideration by a Full court of this Court. I take also into account the question of any substantial injustice that might arise, especially with respect to the applicant. In my view leave to appeal should not be granted and accordingly the motion for leave should be dismissed.

However, before leaving the matter I should refer to the concluding sentence in Einfeld J.'s	judgment which reads as
follows:

"In my view the interrogatories are intenaed to	embarrass and obstruct this litigation not to	prove by admission or inference a case for
judicial review. "

As I read that sentence, in the context of the whole of his Honourls reasons for judgment, it seems to me that it should be construed in the sense that his Honour's view was that the interrogatories had a tendency to embarrass the litigation rather than "to prove by admission or inference a

case for judicial review". I do not read the sentence as casting any aspersions upon the applicant, its solicitors or counsel.

The order of the Court is that the motion be dismissed and that the applicant pay the respondent's costs of the motion.

I certify that this and the preceding six

(6) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate

Date: 2 May 1989

Counsel for the Applicant:	Mr. B. Walker
Sollcltors for the Applicant:	Baker and McKenzie

Counsel for the Respondent:  Mr. J.S. Hllton

Sol~cltors for the Respondent: Australian Government Sol~cltor

Date of Hearlng:	2 May 1989
Date of Judgment:	2 May 1989