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AUSTRALIAN tobacco companies were breathing a "multi-billion dollar sigh of relief" after a New South Wales court today ruled out a class action by smokers seeking compensation.
NSW Supreme Court Justice Virginia Bell found smoker and cancer sufferer Myriam Cauvin could not bring an action on behalf of other smokers.
Ms Cauvin, from Blaxland in Sydney's west, had sued cigarette giants Philip Morris and British American Tobacco and retailers for the return of more than $200 million of invalidly-collected excise tax.
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An attempt to make a general claim against tobacco companies for damages for smokers has been struck out in the New South Wales Supreme Court.
Smoker Myriam Cauvin brought the case against the companies more than two years ago, after undergoing a lung transplant. . . .
But Justice Virginia Bell has ruled out the case, brought by Ms Cauvin on behalf of others, although her own case for damages will be allowed to proceed.
Ms Cauvin's solicitor, Rebecca Dimaridis, says the outcome will be a disappointment to her client.
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The lawyer for a woman claiming compensation from the industry across the Tasman said the law allowed his client, Myriam Cauvin, and others adversely affected by misleading or deceptive conduct by Australian tobacco companies, to claim compensation.
That included New Zealanders who had spent time in Australia from the mid-1970s until now and had or were likely to contract a smoking-related disease, lawyer Neil Francey said.
New Zealanders are being urged to join an Australian class action court case against tobacco companies.
The lawyer for a woman claiming compensation from the industry across the Tasman said the law allowed his client - Myriam Cauvin - and others adversely affected by misleading or deceptive conduct by Australian tobacco companies to claim compensation.
That included New Zealanders who had spent time in Australia from the mid 1970s until now and had or were likely to contract a smoking-related disease, lawyer Neil Francey said.
Myriam Cauvin says Philip Morris and British American Tobacco (BAT) should be forced to set up a national compensation fund because of their gross contravention of consumer laws. . . .
Ms Cauvin failed last year to persuade a court that the companies should pay back $230 million worth of taxes to fight smoking after the High Court ruled that a state tax was invalid. That is subject of a further appeal in the High Court next year.
Her barrister, Neil Francey, told Justice Bell that the cost of taking on the tobacco companies in individual cases meant it was "probably the last opportunity for this to be dealt with in any comprehensive way".
Ms Cauvin's solicitors, Maurice May and Co, believe smokers will come out of the woodwork, and they hope that state governments will take up their standing invitation to join the fight.
The Marlboro man could soon be in the dock after a smoking addict won the right to proceed with Australia's first class action against cigarette companies.
Myriam Cauvin says Philip Morris and British American Tobacco should be forced to set up national compensation because of their gross contravention of consumer laws.
On Friday NSW Supreme Court judge Virginia Bell ruled that even though Ms Cauvin was broke, her claim was bona fide and she had an arguable case.
Justice Bell said eventually someone would start such a claim and it might as well be Ms Cauvin.
The 41-year-old from Blaxland started smoking when she was 10, seduced by advertising and some dubious homespun wisdom. . . .
Ms Cauvin is not basing her claim on negligence, but under the misleading and deceptive conduct provisions of the Trade Practices Act. This means the conduct of the companies will be the issue, not Ms Cauvin's. . . .
Ms Cauvin wants to examine every item of advertising or promotional material and every public statement made by tobacco firms since the Trade Practices Act came into existence on October 1, 1974. She also charges that Philip Morris and BAT conspired to hide the facts on the effects of smoking.
he Supreme Court of New South Wales is to decide if disorganisation is a defence for non-disclosure. Myrian Cauvin is seeking access to a 1,700-file tobacco industry archive currently held by the Tobacco Institute of Australia (TIA) organisation. This is to aid her representative law suit against seven Australian tobacco companies. The lawyer for the TIA claims the 106-box archive is only partially indexed, and finding the documents Cauvin requests would be too costly an exercise, estimated at $A24,380 plus GST. The documents were formerly held by law firm Clayton Utz, which had advised the TIA to keep the information in a disorganised way to aid its interests.
Anne Jones, chairman of Action on Smoking and Health (ASH), said global companies such as Philip Morris and British American Tobacco would face the wrath of thousands of Australian smokers also duped by a conspiracy of misinformation and corporate fraud.
"We would like to see much more accountability given that we are dealing with the same company (Philip Morris) and the same fraud," she said. . .
Ms Jones said the record US payout would encourage 39-year-old Myriam Cauvin, 39, from Blaxland, west of Sydney, who is currently taking Philip Morris and British American Tobacco to court.
An Australian ex-smoker had her attempt to force British American Tobacco and Philip Morris to pay back A$230 million (US$124 million) in invalid taxes thrown out of court on Thursday.
Myrian Cauvin who suffered emphysema and has had a lung transplant wanted the giant tobacco firms to release tax money, she says was paid by smokers buying cigarettes, to establish a fund for smokers trying to quit.
A New South Wales Supreme Court Judge William Windeyer dismissed the case on Thursday saying it was "doomed to fail", according to his written judgement.
The case followed a High Court ruling in August 1997 that excise tax on cigarettes between July 1, 1997, and August 5, 1997, was invalid, forcing the introduction of retrospective laws to cover the tax.
But the laws did not cover a five-week period of tax collection after August 5, when an estimated A$230 million was collected.
Judge Windeyer said Cauvin's claim could not succeed because "payment for a cigarette does not discharge an obligation to pay a tax", he also said it was impossible to say what part of the price of a cigarette represented tax.
Two new court actions have been commenced against the Australian tobacco companies in the NSW Supreme Court over the past week by Myriam Cauvin represented by Maurice May & Co. Solicitors.
Myriam Cauvin, from western Sydney, began experimenting with tobacco products at ten years of age, was regularly smoking by 13-15 years of age, developed breathlessness by 26, was diagnosed with emphysema in her early thirties and was given a life-saving lung transplant on 11 September 2001. She is on a disability pension and medication for life, treatment costs of which around $800 a week are paid by the Commonwealth Government PBS.
Emphysema sufferer Myriam Cauvin, 39, from Blaxland, west of Sydney, today launched the second of two cases in the NSW Supreme Court against British American Tobacco, Philip Morris and Imperial Tobacco.
In a lengthy statement of claim filed today, Ms Cauvin alleges the companies engaged in a conspiracy to mislead, conceal and influence authorities to ensure the truth about the harmful effects of tobacco smoking was not revealed.
Outside the court, her lawyer Maurice Max said the case was different from previous personal injury actions because the heart of the allegations was conspiracy.
Ms Cauvin, a lung transplant recipient, is accusing the tobacco companies of breaching the federal Trade Practices Act and the NSW Fair Trading Act.
In a second action, she is seeking to have the companies hand back $200 million in taxes invalidly collected.
She is fighting to have the money transferred to a fund to compensate smokers for the cost of quitting and for associated health problems.