The claims for injunctive relief under s 80 of the TPA
46 In paragraph 3.11 the plaintiff claims injunctions pursuant to s 80 of the TPA and/or the equivalent provisions of the FTA. The orders that she seeks include:
"(d) Order each of the defendants to disclose, disseminate, and make available to the plaintiff and other persons and such public health and regulatory authorities as the Court may select, all documents relating to research previously conducted directly or indirectly by themselves and their respective agents, affiliates, servants, officers, directors, employees, and all persons acting in concert with them, that relate to the health consequences of cigarette smoking and nicotine addiction, and the ability to develop less hazardous cigarettes.
(e) Order each of the defendants to fund, but have no part of or influence over the control of or decision-making relating to, a legitimate and sustained corrective public education campaign, administered and controlled by an independent third party, relating to the public health issues of cigarette smoking and nicotine addiction.
(f) Order each of the defendants to disclose, disseminate, and make available to the plaintiff and other persons, and such public health and regulatory authorities as the Court may select, all documents relating to marketing or advertising campaigns that target and/or encourage persons under the age of eighteen years to purchase and consume cigarettes; to refrain from engaging in any such campaigns in the future; and to provide mechanisms to ensure compliance.
(h) Order each of the defendants to fund, but have no part of or influence over the control of or decision-making relating, sustained cessation programs including the provision of medically approved nicotine replacement therapy for dependant smokers.
(i) Order each of the defendants to fund, but have no part of or influence over the control of or decision-making relating to, a sustained educational campaign devoted to the prevention of smoking by under the age of eighteen years.
47 The defendants submit that each of these claims for relief is untenable and should be struck out. The plaintiff submits that it is premature to deal with the scope of the relief at this interlocutory stage in the proceedings. Mr Francey relies on the breadth of the terms of s 80(1) which empowers the court upon proof of a contravention (or that a contravention is proposed) to grant an injunction in such terms as it determines to be appropriate.
48 In Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 Merkel J discussed the scope of the power to grant injunctive relief under s 80 of the TPA. At 203-204 his Honour said this:
"In summary, in determining whether an injunction under s 80 is 'appropriate' there are, at least, three limitations on the court's power.
First the power is confined by reference to the scope and purpose of the TPA and in particular s 80. It is within the scope and purpose of s 80 to grant injunctive relief which is designed to prevent a repetition of the conduct for which the relief is sought.
Secondly there is a contextual limitation within s 80 itself. As the jurisdiction to grant an injunction is enlivened by an alleged or actual contravention of a provision of Pt IV, IVA or V of the TPA, there must be a sufficient nexus or relationship between the contravention and the injunction granted. It is that nexus or relationship that enables determination by the court of whether the injunction sought is 'appropriate'.
Thirdly, there is the constitutional limitation which requires that the injunction granted be related to the case or controversy the subject of the proceeding."
49 In Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18; 161 ALR 79 (REIWA), French J discussing the power conferred by s 80 of the TPA observed at 87, [26]:
"In addition to the question of power and the question of the public interest there are practical issues to be considered in the formulation of undertakings or consent injunctions. Once an undertaking is accepted by the court or a consent order made, their breach is enforceable by proceedings for contempt. The undertakings and orders must therefore be formulated with precision so they are capable of being readily obeyed. Undertakings or orders which are likely to involve vague evaluative judgments or significant debates on their interpretation are not likely to be given the court's sanction. Similarly, undertakings or orders which are likely to require the court to be concerned with the ongoing supervision of the conduct of the parties to them will also raise serious questions as to their appropriateness. So in this case the requirement of compliance with the Australian Standards Association standard for compliance programs imposes standards which are aspirational in their expression and not readily measured in application."
50 The defendants submit that the Court cannot grant mandatory injunctive relief in favour of "other persons". As I have noted, the "other persons" for whose benefit the orders are sought are unidentified and unidentifiable. The references to "other persons" in sub-paragraphs 3.11(d) and (f) will be struck out.
51 More generally the defendants challenge the plaintiff's ability to claim relief of the novel character of that sought in sub-paragraphs (d), (f), (e), (h) and (i).
52 The complaint with respect to sub-paragraphs (e), (h) and (i) is that the plaintiff seeks to provide an independent third party, who is not amenable to the orders of the court, with the power to determine privately the means by which the orders are to be implemented. The relief is characterised as "aspirational". How the defendants ask is it to be determined that a "legitimate and sustained corrective public education campaign" or "sustained cessation programs" have been implemented. It is submitted that orders of this character require the Court to engage in constant supervision of the parties and, it may be, the third party administering the fund. In the defendants' submission relief of this description is not within the scope of the power conferred under s 80. Alternatively it is submitted that mandatory orders such as those claimed could not be characterised as "appropriate" in the exercise of the Court's discretion.
53 I am mindful of the observations of French J in REIWA that orders likely to require the court to be concerned with the ongoing supervision of the conduct of the parties are such as to raise serious questions as to their appropriateness (at 89). In ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) ATPR 41-185 the Full Court considered the scope of the power conferred by s 80 of the TPA. In that case Lockhart J, after noting that wide powers devoid of traditional constraints are conferred by s 80, commented on the need for the power to be exercised "judicially and sensibly" (at 56). His Honour went on to observe that, "Plainly injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction".
54 The scope of the wide power to make mandatory orders under s 80 of the TPA is not clear. While I acknowledge the force of the defendants' contentions with respect to the relief claimed in paragraphs 3.11(d), (f), (e), (g) and (i), I have concluded that I should not determine on a strike-out application that the orders that are sought could not represent an appropriate exercise of the Court's discretion.