United States Tobacco Co v The Minister for Consumer Affairs & Anor [1988] FCA 360

JUDGMENT Ne. 207 <<

F 1008 Seeccateeenes,

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G158 of 1988

No. G769 of 1988

GENERAL DIVISION

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BETWEEN: UNITED STATES TOBACCO COMPANY Applicant AND: THE MINISTER FOR CONSUMER AFFAIRS

First Respondent

AND: THE TRADE PRACTICES COMMISSTON

Second Respondent

CORAM: FOSTER, J. DATE: 6 MAY, 1988.

PLACE: SYDNEY.

REASONS FOR JUDGMENT

( EXTEMPORE )

HIS HONOUR: This 1s an application for leave to appeal from interlocutory orders of Einfeld, J. made on 28 March and 7 April of this year. By these orders his Honour dismissed with

costs the Notice of Motion of the present applicant seexirg

2. orders restraining the second respondent from proceeding with

the conference pursuant to s. 65J of the Trade Practices Act,

1974 concerning the proposal of the Minister for Consumer Affairs to declare certain tobacco products to be unsafe goods, before determination of the proceedings or further order;

alternatively, an order pursuant to s. 15 of the Administrative

Decisions (Judicial Review) Act, 1977 staying the conference.

The conference pursuant to the Trade Practices Act,

1974 ("the Act") had been requested by the applicant following on a notice published in the gazette by the first respondent, the Minister for Consumer Affairs, on 14 January, 1988 pursuant to ss. 65C and 6573 of the Act, in which he notified his proposal to declare certain oral smokeless tobacco products of the applicant to be unsafe goods within the meaning of that section. The conference had been requested on a without prejudice basis as the applicant contended that the Minister lacked power to make the relevant declaration and the second respondent, the Trade Practices Commission, also lacked power

to hold the conference.

In support of these contentions the applicant commenced proceedings in this Court seeking declaratory and unjunctive relief under the general law and also under the