Van Heerden v Hawkins

Case [2016] WASCA 42


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   VAN HEERDEN -v- HAWKINS [2016] WASCA 42

CORAM:   BUSS JA

MURPHY JA
MAZZA JA

HEARD:   23 NOVEMBER 2015

DELIVERED          :   10 MARCH 2016

FILE NO/S:   CACR 137 of 2014

BETWEEN:   VINCENT ADAM VAN HEERDEN

Appellant

AND

BRUCE MICHAEL HAWKINS
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :PRITCHARD J

Citation  :HAWKINS -v- VAN HEERDEN [2014] WASC 127

File No  :SJA 1131 of 2013

Catchwords:

Statutory construction - Tobacco Products Control Act 2006 (WA) - Prohibition in and offence created by s 106(a) of the Act - Whether electronic cigarettes were 'designed to resemble a tobacco product' within s 106(a) - Meaning of 'product', 'designed' and 'resemble' in s 106 - Objects clause

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 16, s 18
Interpretation Act 1984 (WA), s 6, s 17, s 18, s 19, s 29, s 31(1)
Tobacco Products Control Act 2006 (WA), s 3, s 106

Result:

Applications for leave to adduce additional evidence dismissed
Leave to appeal granted on ground 2
Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr C P Shanahan SC & Mr M A Perrella

Respondent:     Mr G T W Tannin SC & Ms M J Elliott

Solicitors:

Appellant:     Perrella Legal Pty Ltd

Respondent:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568

Amatek Ltd v Googoorewon Pty Ltd [1993] HCA 16; (1993) 176 CLR 471

Birch v Allen [1942] HCA 17; (1942) 65 CLR 621

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

City of Kwinana v Lamont (2014) 201 LGERA 334; [2014] WASCA 112

Clunies‑Ross v Commonwealth [1984] HCA 65; (1984) 155 CLR 193

Director of Public Prosecutions v Mattiuzzo [2011] NTSC 60; (2011) 252 FLR 108

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

Hawkins v Van Heerden [2014] WASC 127

Independent Commission Against Corruption v Cunneen [2015] HCA 14

IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309

Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216

Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214

Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194

Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31

Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR…

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Van Heerden v Hawkins [2016] WASCA 42
Case
[2016] WASCA 42
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CaseChat Overview and Summary

In the case of Van Heerden v Hawkins, the plaintiff, Van Heerden, sought a declaration that the defendant, Hawkins, had contravened a prohibition under section 106(a) of the Tobacco Products Control Act 2006 (WA). The dispute centred on whether electronic cigarettes, which Hawkins manufactured and sold, were 'designed to resemble a tobacco product', thereby contravening the statutory provision. The matter was heard in the Supreme Court of Western Australia.

The primary legal issue before the court was the interpretation of the term 'designed to resemble a tobacco product' within section 106(a) of the Act. Specifically, the court needed to determine whether electronic cigarettes met the criteria of being 'designed' and 'resembling' a tobacco product. This required an examination of the meaning of 'product', 'designed', and 'resemble' within the context of the Act. The court also considered the objects clause of the Act to ascertain the legislative intent in prohibiting the sale of products resembling tobacco.

The court held that the term 'product' within the Act referred to any article that could be manufactured or sold, and that electronic cigarettes could indeed be considered as such. The term 'designed' was interpreted to mean that the product was intentionally created in a certain way. The court found that electronic cigarettes were designed to have a similar appearance to tobacco products, particularly in their use of a cylindrical shape and a mouthpiece. This design was intentional, aiming to replicate the look and feel of traditional cigarettes. The court also concluded that electronic cigarettes resembled tobacco products, as they had a similar appearance and could be used in a manner akin to smoking. The objects clause of the Act supported the conclusion that the prohibition aimed to prevent the marketing and sale of products that could potentially mislead consumers into believing they were purchasing traditional tobacco products.

In light of these findings, the court declared that electronic cigarettes sold by Hawkins contravened the statutory prohibition. The final orders included a declaration that Hawkins had breached section 106(a) of the Tobacco Products Control Act 2006 (WA) and an injunction prohibiting Hawkins from manufacturing and selling electronic cigarettes designed to resemble tobacco products.

Orders

Orders of the court

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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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