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
[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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AGLC
Van Heerden v Hawkins [2016] WASCA 42
Case
[2016] WASCA 42
Decision Date
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.