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I forward this message on behalf of Christopher Archibald:

List members may be interested to learn of the demise of an epilogue to Roxborough v Rothmans, the Australian case by which retailers of tobacco obtained restitution of unconstitutional excise duties paid to wholesalers. The retailers were successful notwithstanding that the payments to wholesalers had been funded by consumers.

In Cauvin v Philip Morris [2002] NSWSC 736, a tobacco consumer (as a representative of a class of consumers) commenced proceedings in the New South Wales Supreme Court against various large tobacco wholesalers and a large supermarket chain (as representative of a class of retailers).

Yesterday, Windeyer J held that the claim should be dismissed, except for leave to replead a claim in "unjust enrichment per se" between the named plaintiff and retailers (not as a class action).

His Honour dismissed claims as follows:

* claims pleaded as "money had and received", "failure of consideration" and "subrogation" against the wholesalers were dismissed because the result of Roxborough was that the wholesalers are liable to the retailers and can therefore no longer be enriched;

* the same claims against the retailers were dismissed because claims were bound to fail since the amount of tax paid by the consumer could not be separately identified (retailers did not show any amount for tax as a separate item of the price charged to consumers), relying on Mason J in Royal Insurance and Learned Hand J in 123 East Fifty-Fourth Street; and

* there were also claims for a trust of sorts and in unconscionability (within the meaning given by the Trade Practices Act 1974 (Cth)) which were given short shrift.

However a separately pleaded claim in "unjust enrichment" against the retailers was not dismissed. His Honour said at [23-24]:

"Generally speaking I consider it to be accepted that it is necessary to show a recognized category of unjustness. In other words unjust enrichment is not generally thought of as a cause of action "but a unifying legal concept which explains why the law recognizes in a variety of distinct category of cases an obligation on the part of the defendant to make fair and just restitution for a benefit derived at the expense of the plaintiff" (my underlining) Pavey & Matthews Pty Limited v Paul (1987) 162 CLR 221 per Deane J at 256. The question is whether this is so clear that the position is unarguable. I deal with this on the basis the claim is not within a recognized category of non-voluntary payments so that if recognized it will require recognition of a "general nominative principle of unjust enrichment" as explained by Gummow J in Winterton Constructions Pty Ltd v Hambros Australia Limited (1991) 101 ALR 363 at 374-5. In that action Gummow J refused to dismiss the cause of action based on unjust enrichment. While I think it unlikely such a claim could be maintained, I do not think it absolutely certain that the plaintiff, if she pleaded and proved the necessary facts of purchase of untaxed cigarettes, could not establish some claim to some part - albeit not capable of precise identification in a monetary sum - of the purchase price paid by her."

However, the claim in "unjust enrichment" was not permitted to proceed as a class action (either by or against a class of parties). Where tobacco products sold during the relevant period included a mix of stock in respect of which the unconstitutional tax had and had not been paid to wholesalers, it was impossible to establish whether the product purchased by any particular consumer was tobacco upon which it was thought by the retailer that a tax was payable, so that in a general way the purchase price reflected the tax which was not paid. The plaintiff conceded that it would not be possible to prove that particular retailers (in the class of retailers) were enriched at the expense of particularly identifiable consumers. Accordingly, that claim was not permitted to proceed as a representative action. In all likelihood, however, it would seem that the same reasoning will lead the claim to founder even between named parties.

Regards

Christopher Archibald