Australia

This was the hearing of an appeal from the decision of a single judge finding that a newspaper advertisement published by the Tobacco Institute of Australia (TIA) was misleading and deceptive in breach of the Trade Practices Act. Morling J had decided that the following statements in the advertisement were demonstrably false: "(T)here is little evidence and nothing which proves scientifically that cigarette smoking causes disease in non-smokers;"  and"The London Times reported findings from the Institute of Cancer Research in Surrey, England ... that 'passive smoking' for life-long non-smokers causes no significant increase in the risk of lung cancer, bronchitis or heart disease ... The Institute's conclusions are based on a wealth of statistical detail from a study involving 12,000 people."

The TIA appealed on a number of grounds, including challenging Morling J's findings of fact relating to the risks to health posed by passive smoking. The TIA also appealed the finding that the advertisement was published "in trade or commerce", as required by the Act.

The three members of the Court of Appeal each delivered a separate judgment. The Court upheld Morling J's findings of fact; however, their Honours did not consider that the injunctions Morling J had ordered were appropriate and therefore set them aside. The Court set the matter down for a further hearing on the form of relief that should be ordered.

See subsequent decision: Re Tobacco Institute of Australia Limited v. Australian Federation of Consumer Organisations Inc [1993] FCA 83 (10 March 1993). For Morling J's earlier decision, see: Re Australian Federation of Consumer Organisations Inc v the Tobacco Institute of Australia Limited [1991] FCA 17 (7 February 1991).