Page:JT International SA v Commonwealth of Australia.pdf/91

Crennan J

CRENNAN J. The issues in these two proceedings, the relevant facts, and the relevant provisions of the Tobacco Plain Packaging Act 2011 (Cth) ("the Packaging Act") and the Tobacco Plain Packaging Regulations 2011 (Cth) ("the Regulations") can be found in other reasons, obviating the need to set out those matters except as necessary to inform these reasons. The plaintiffs challenge the Packaging Act principally on the basis that its operation will effect an acquisition of their property otherwise than on just terms, contrary to s 51(xxxi) of the Constitution. It will be determined in these reasons that their respective challenges fail. I agree with the orders on the demurrer and with the answers to the reserved questions proposed by Gummow J. Accordingly, I joined in the orders pronounced on 15 August 2012.

The details of the two proceedings, the plaintiffs (each one a constitutional corporation) and the interveners are set out in the reasons of Gummow J and are adopted here. His Honour also sets out the particulars of the plaintiffs' claims to property said to fall within the meaning of s 51(xxxi), including those claims based on the statutory species of property protected under the Trade Marks Act 1995 (Cth) ("the Trade Marks Act"), the Copyright Act 1968 (Cth) ("the Copyright Act"), the Designs Act 2003 (Cth) ("the Designs Act") and the Patents Act 1990 (Cth) ("the Patents Act"), which I do not need to repeat.

Those particulars show that a preponderance of the registered trade marks relied upon as part of the plaintiffs' challenge to the Packaging Act are composite trade marks consisting of the brand name "Winfield" (in the BAT proceedings) and the brand names "Camel" and "Old Holborn" (in the JTI proceedings), together with other non-verbal graphic material. In the JTI proceedings, two of the four registered trade marks relied upon consisted of the brand name "Camel" alone, one of which was in fancy script. In the BAT proceedings, no claim under the Trade Marks Act was made in relation to the brand name "Dunhill", although that brand name has been used in the trade in tobacco products together with the subject matter of the registered design and patent referred to in those proceedings. All product get-up was associated with trade marks, or brand names, and included colours, logos, devices and fancy lettering or markings. The original artistic work in which copyright was claimed in the BAT proceedings appeared to be applied in product get-up.