Philip Morris (Australia) Ltd v Nixon [1999] FCA 1281

Philip Morris (Australia) Ltd v Nixon [1999] FCA 1281

Because publication of the Court-approved advertisements was a procedural step under Part IVA rather than vindication of a substantive right, and because publication before determination of arguable appeals created a real risk of significant prejudice and misleading putative class members if the proceedings did not continue as advertised, that prejudice outweighed the prejudice likely to result from a short delay in publication. Orders 2, 3, 4 and 5 should be stayed. A broader stay concerning discovery was premature because no discovery orders had yet been made.

Jurisdiction
Australia
Judgment Date
14 September 1999
Procedural Posture
Application for Stay in Representative Proceedings Brought Pursuant to Part IVA of the Federal Court of Australia Act 1976 (cth) / Urgent Full Court Hearing of Stay Applications Pending Determination of Applications for Leave to Appeal and Any Appeals From Interlocutory Orders of Wilcox J
Outcome
Stay granted in part; application for a more general stay stood over until the hearing of the application for leave to appeal.
Legal Topics
['stay Pending Application for Leave to Appeal' 'publication of Notice to Group Members' 'opt Out Procedure' 'part IVA Representative Proceedings']
['practice and Procedure' 'representative Proceedings'] ['stay Pending Application for Leave to Appeal' 'publication of Notice to Group Members' 'opt Out Procedure' 'part IVA Representative Proceedings']

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Procedural Posture

Application for Stay in Representative Proceedings Brought Pursuant to Part IVA of the Federal Court of Australia Act 1976 (cth) / Urgent Full Court Hearing of Stay Applications Pending Determination of Applications for Leave to Appeal and Any Appeals From Interlocutory Orders of Wilcox J

Legal Issues

  1. 1 ['Whether orders requiring publication of advertisements in representative proceedings should be stayed pending determination of applications for leave to appeal and any appeals.' 'Whether the risk of prejudice to putative group members from publication of Court-approved advertisements outweighed prejudice from delaying publication.' 'Whether a more general stay of the proceedings at first instance, including discovery, should be granted.']

Ratio Decidendi

Because publication of the Court-approved advertisements was a procedural step under Part IVA rather than vindication of a substantive right, and because publication before determination of arguable appeals created a real risk of significant prejudice and misleading putative class members if the proceedings did not continue as advertised, that prejudice outweighed the prejudice likely to result from a short delay in publication. Orders 2, 3, 4 and 5 should be stayed. A broader stay concerning discovery was premature because no discovery orders had yet been made.

Court Disposition

Stay granted in part; application for a more general stay stood over until the hearing of the application for leave to appeal.

Orders

  • ['Orders 2, 3, 4 and 5 of the orders made by Wilcox J on 1 September 1999 be stayed pending determination of the applications for leave to appeal and (should leave be granted) of the appeals herein.']