FEDERAL COURT OF AUSTRALIA

Nixon v Philip Morris (Australia) Ltd [1999] FCA 1228

MICHAEL CHRISTOPHER NIXON, ALEX TALAY, ROBERT MILNE, VICTOR BRUCE WILLIAMS, SANDRA SHEPARD and GREGORY DURKIN (for themselves and as representing the persons referred to in paragraph 1 of the Statement of Claim)

v

PHILIP MORRIS (AUSTRALIA) LTD and PHILIP MORRIS LTD, W D & H O WILLS HOLDINGS LTD and W D & H O WILLS (AUSTRALIA) LTD and ROTHMANS HOLDINGS LTD and ROTHMANS OF PALL MALL (AUSTRALIA) LTD

N326 of 1999

WILCOX J

SYDNEY

31 AUGUST 1999

EXTEMPORE REASONS FOR JUDGMENT (No.2)

1                     WILCOX J: I propose to grant leave to the applicants to file a Further Amended Application and a Further Amended Statement of Claim in accordance with drafts that were provided yesterday by their solicitors to my associate and to the respondents.  For identification purposes I will initial each of those documents.  The filed documents are to follow those drafts with the single exception that, in para (d) of the description of the represented persons, the blank which currently occurs before the date “1999” is to have inserted the word “September”.  The completed documents should be filed and served not later than tomorrow evening. 

2                     In indicating this as the appropriate order, I do not propose to traverse all the matters that have been put by counsel today.  I simply say that, at an earlier point of time, I gave the respondents a full opportunity to raise any points they wished, in respect of striking out the action or the pleadings, or raising jurisdictional points.  In response to that opportunity, the respondents raised numerous issues.  They dealt with them in detailed and lengthy (but helpful) written submissions.  I also received submissions in reply from the applicants.  Over two days, on the 26th and 27 July, I heard oral submissions about these issues.  All matters that any respondent wished to put forward were ventilated.  I then wrote a lengthy judgment dealing with the issues that had been raised.  At the end of my judgment, I indicated that, in the light of some of my conclusions, there was a need to review the Statement of Claim.  I felt it was appropriate to allow the respondents an opportunity of considering the revised draft before it was filed.  I made directions, in para 134 of my reasons, for that to be done.  I specifically referred to giving the respondents an opportunity to consider any fresh problems.  In paragraph 135 I said, if any respondent considers the new draft raises “a problem not previously raised or fails to comply with any ruling or assumption contained in these reasons”, its solicitor should notify the applicants’ solicitors of that fact, and the revised document should not be filed before today.  In fact, the solicitors for each of the respondents did notify objections to the applicants’ solicitors; so the applicants’ solicitors forbore filing the Further Amended Statement of Claim, in accordance with my directions. 

3                     Before I came into Court today I had the benefit of reading, not only the latest version of the Statement of Claim, but also lengthy submissions from the first respondents in respect of their objections to it.  Those submissions go well beyond the area I had in mind.  Nonetheless. I have listened to what counsel had to say about them. 

4                     A number of the objections are entirely new.  I disregard them; I do not propose to allow the process of settling a Statement of Claim to continue indefinitely.  Many of the objections reagitate, in the same or a different form, matters previously argued and dealt with in my judgment of 13 August.  I have not discerned any objection falling within the category described by me in paras 134 and 135 of my earlier reasons.

5                     The problems raised by the respondents in respect of the lobbying allegation should be met, in the first instance, by a request for particulars.  In the light of the answers to the request for particulars, consideration can be given by the respondents as to whether any of them wish to seek a separate determination of lobbying issues.  If and when an application to that effect is made, I will consider it on its merits. 

6                     I think it is important that this proceeding progress in an efficient manner.  I am satisfied that the current version of the Statement of Claim, which is a vast improvement on earlier versions, is appropriate to be filed.  Accordingly, I grant leave as indicated.

Associate:

Dated:              31 August 1999