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 we 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 Administrative Decisions (Judicial Review) Act, 1977. These proceedings have been the subject of directions hearings in the Court and are in process of being prepared for trial. If 3. successful they will bring to an end or avoid the effects of the notification under s. 65C and also the conference under s. 653 of the Act. In the meantime, apparently as a result of Ministerial decision, the conference 1s going ahead. The proceedings brought by the applicant before Einfeld, J. had the purpose of obtaining interlocutory orders halting the conference pending the determination of the issues taised in the substantive proceedings in this Court. The principal grounds to be argued in those proceedings were argued before Einfeld, J. These were:- (a) that the reasons put forward by the Minister :n support of the notice published pursuant to s. 6&J dd not permit the characterisation of the applicant's goods as being goods "that will or may cause injury to any person" within the meaning of s. 65C(5) of the Act, and (b) that s. 65C and s. 653 and indeed, the sections associated with them in the Act, were invalid and of no effect as being ultra vires the legislative powers of the Commonwealth Parliament. Einfeld, J. held that on any test ordinarily applicable to the granting of interlocutory relief he was not satisfied that such relief should be granted. He was not satisfied that it was demonstrated that there was a serious question to be tried on either ground or any arguable point of substance. He woulc also 4. have dismissed the motion on discretionary grounds on the basis, unter alia, that the balance of convenience did not favour the applicant. The application before me is for leave to appeal from that decision to the Full Court of this Court. Although it has not been submitted that there are any definite fetters upon the granting of leave, 1t 1s clear that I must have regard to the principles which will govern the deliberations of the Full Court itself 1n deciding whether to allow appeals from this interlocutory decision. These principles are set out in Adam P. Brown Male Fashion Proprietary Ltd. v. Philip Morris Incorporated & Anor., 148 C.L.R. 170 at p. 177, where the High Court says:- "An interlocutory order for an injunction is a Matter of practice and procedure. See McHarg v. Universal Stock Exchange Ltd. (1895) 2 Q.B. 81, at p. 82; Minister for the Army v. Parbury Henty and Co. Pty. Ltd. (1945) 70 C.L.R. 459, at p. 489; White v. White (1947) V.L.R. 434, at p. 438. Nor 1s there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view 1s that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd. (1978) V.R. 431, at p. 440; on the other hand, De Mestre v. A.D. Hunter Pty. Ltd. (1952) 77 W.N. 9N.S.W.0 143, at p. 146. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.) (1946) 46 S.R. (N.S.W.) 318, at p. 323: 5. »». I am of opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, 1f a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up undefinitely, 1f a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal." See also, Brambles Holdings Ltd. v. Trade Practices Commission, (1979) 40 F.L.R. 364, at p. 365; 28 A.L.R. 191, at p. 193. Dougherty v. Chandler (1946) 46 S.R. (N.S.W.)} 370, at p. 374. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration." As I see it, I have to determine whether the applicant has shown a reasonable prospect that the Full Court, havin QQ regard to these principles, would reverse the decision of Einfeld, J. and grant the interlocutory relief sought. These proceedings before me are not, of course, an appeal from Einfeld, J. to myself and it 1s neither necessary nor desirable that I embark in these reasons upon an extensive consideration of the reasons given by his Honour for refusing the applicant's motion. As to the claim that the Minister and the Trade Practices Commission lacked the relevant power, I am satisfied that leave should not be granted. The decision of the High Court in The Commonwealth v. Tasmania the Tasmanian Dams Case, 185 C.L.R. 1, would quite clearly, in my respectful view, lead the Full Court to hold, at least at an interlocutory level, that s. 6. 65C must, prima facie, be regarded as properly enacted under s. 51(xxX) of the Constitution. Even though it deals also with matters of health and consumer protection (see, for instance, per Mason, J. at pages 151 and 153). Moreover, the proceedings being interlocutory only, regard would necessarily have to be paid to the principles expressed, inter alia, in Richardson v. Forestry Commission & Anor., 73 A.L.R. 589 at p. 600, where the Chief Justice says:- "What I have just said conforms to the general principle that, in the absence of compelling grounds, it is the duty of the court to respect, indeed, to defer to the enactment of the legislature until that enactment 1s adjudged ultra vires: Castlemaine Tooheys Ltd. v. South Australia (1986) 60 A.L.J.R. 679; 67 A.L.R. 553; Davids Holdings Pty. Ltd. v. Byrnes (1987) 71 A.L.R. 251. Furthermore, the application of this principle forecloses the issue of balance of convenience in favour of the plaintiff." Accordingly, I can see no reasonable ground for granting leave to appeal in respect of this aspect of the case. In relation to the applicant's claim that the material furnished in the Minister's reasons pursuant to s. 65J of the Act undicates that no ground is shown for the application of s. 65C for the applicant's product, the situation 1s, in my view, not so clear. The Minister may by notice declare the goods to be "unsafe goods" with the consequences that follow, if 1t "appears to the Minister" that the goods "will or may cause injury to any person". The applicant argued before Einfeld, J. and before me, that "injury" must be given a restricted meaning. Reliance was placed upon cases such as Favell Mort Pty, Ltd. v. Murray, 133 C.L.R. 580, and American Home Assurance Co. v. Saunders, 4 A.N.2. Insurance Cases, p. 75,000, for the submission that the word "injury" in this legislation, as in other legislative and contractual situations, should involve the concept of some invasion or intrusion into a person's physical being of some extraneous substance, force or factor. As such, "injury" is to be contrasted with "disease" or "1lIness" which may be of autogenous or idiopathic origin Support is asserted for this submission from the wording of s 65L where the phrase "risk of serious illness or serious injury" appears, it being put that the legislature, by its use of these two terms in contrast, must have contemplated the restrictive meaning of the word "injury". This 18, no doubt, an arguable proposition. However, there was no factual material before Einfeld, J. nor before me 17 ths application to indicate that the applicant's product was incapable of physically invasive activity. Moreover, s. 65C(5) requires only that 1t appear to the Minister that the goods "nay cause injury". Clearly, in such circumstances, actual invasive or intrusive characteristics do not have to be firmly established, at least at an interlocutory level. I must have very considerable hesitation as to whether there 1s indeed an arguable point of substance disclosed for the consideration of the Full Court. Furthermore, it 1s apparent that the conference proceedings are now well advanced. So far as can be ascertained, it would appear that they would, in all probability, conclude before the appeal could be heard by the Full Court. Also, there would appear to be nothing to prevent an expeditious hearing of the substantive proceedings when these issues can be fully litigated and finally disposed of. In all the circumstances, I am satisfied that no satisfactory basis exists for the granting of leave. Leave is refused. The Notice of Motion 1s dismissed with costs. I will direct that the substantive proceedings be placed in the directions list next Friday, 13 May, 1988. I certify that this and the T preceding pages are a true copy of the reasons for judgment herein of his Honour, Mr. Justice M.L. Foster. Associate: Adi Dated: 18 July, 1988.