Full Court Minute Books

Case S389/2411

British American Tobacco Australasia Limited and Ors v. The Commonwealth of Australia

Case No.

S389/2011

Related matter:

S409/2011 – J T International SA v. Commonwealth of Australia

Case Information

Catchwords

Constitutional law (Cth) — Commonwealth Constitution, s 51(xxxi) — Constitutional guarantees — Express limits on Commonwealth legislative power — Implied limits on Commonwealth legislative power — Acquisition of property on just terms — Plaintiffs' hold trade marks some of which registered under Trade Marks Act 1995 (Cth) ("Trade Marks") — Plaintiffs were entitled to use Trade Marks for tobacco products and packaging of tobacco products — Plaintiffs' hold copyright in distinctive tobacco packaging ("Copyright Works") — Plaintiffs' registered owner of tobacco packaging designs registered under Designs Act 2003 (Cth) ("the Designs") — Plaintiffs' hold patents relating to form of tobacco products registered pursuant to Patents Act 1990 (Cth) ("the Patents") — Plaintiffs' tobacco products use distinctive trade dress and get up which utilise the Trade Marks and/or reproduce Copyright Works ("the Get Up") — The Tobacco Plain Packaging Act 2011 (Cth) ("the Packaging Act") regulates and standardises retail packaging and appearance of tobacco products — Section 15 of the Packaging Act provides, inter alia, that the Act does not apply to the extent (if any) that its operation would result in an unconstitutional acquisition of property from a person otherwise than on just terms — Whether the Packaging Act would, but for the operation of s 15, result in unconstitutional acquisition of plaintiffs' property comprising the Trade Marks, Copyright Works, the Get Up, licensing goodwill, the Designs, the Patents, packaging goodwill, packaging rights and intellectual property licence rights ("the Property") otherwise than on just terms — Whether by reason of s 15 the Packaging Act's operative provisions do not apply to and have no operation with respect to the Property — Whether the Packaging Act impermissibly confers legislative power upon judiciary — Whether if by purporting to identify the circumstances to which it validly applies the Packaging Act falls outside the scope of legislative power conferred by s 51(xxxi) — Whether the Packaging Act invalid because its purported enactment did not involve an exercise of legislative power to make "laws" conferred by s 51(xxxi).

Short Particulars

Documents

01/12/2011 Writ of summons

07/12/2011 Notice of constitutional matter (Plaintiffs)

24/01/2012 Hearing (Single Justice, Sydney)

07/02/2012 Defence (Defendant)

23/02/2012 Hearing (Single Justice, Sydney)

27/02/2012 Hearing (Single Justice, Canberra)

28/02/2012 Question reserved

23/03/2012 Notice of Constitutional Matter (Defendant)

26/03/2012 Written submissions (Plaintiffs)

26/03/2012 Notice of Constitutional Matter (Van Nelle Tabak Nederland BV & Imperial Tobacco Australia Ltd intervening)

26/03/2012 Written submissions (Van Nelle Tabak Nederland BV & Imperial Tobacco Australia Ltd intervening)

26/03/2012 Written submissions (Phillip Morris Ltd intervening)

26/03/2012 Written submissions (Cancer Council of Australia seeking leave to intervene)

30/03/2012 Notice of Constitutional Matter (Cancer Council Australia)

05/04/2012 Written submissions (Defendant)

05/04/2012 Chronology (Defendant)

05/04/2012 Written submissions (Attorney-General for the Northern Territory intervening)

05/04/2012 Written submissions (Attorney-General for the Australian Capital Territory intervening)

11/04/2012 Reply

11/04/2012 Reply (Van Nelle Tabak Nederland BV & Imperial Tobacco Australia Ltd intervening)

11/04/2012 Reply (Phillip Morris Ltd intervening)

12/04/2012 Written submissions (Attorney-General of the State of Queensland intervening)

17/04/2012 Hearing (Full Court, Canberra)

18/04/2012 Hearing (Full Court, Canberra)

19/04/2012 Hearing (Full Court, Canberra)

15/08/2012 Pronouncement of Orders (Summary)

05/10/2012 Judgment