Attorney-General for the State of Victoria & Phillip Morris Limited v Lindsey

The Attorney-General for the State of Victoria and Phillip Morris Limited sought leave to bring a proceeding against Lindsey under Section 21(4) of the Supreme Court Act 1986, following a history of vexatious litigation by Lindsey. Leave was granted ex parte, and Lindsey subsequently made an application to set aside the order, despite not being a party to the proceeding but rather a person affected by the order. The application was made under Rules 1.14(2) and 46.08 of the Rules of Court.

The central legal issue before the court was whether Lindsey, who was not a party to the proceeding, was entitled to make an application to set aside the order granting leave. This issue was compounded by the fact that Lindsey had been ordered to pay costs in previous proceedings but had not complied with these orders. The court had to determine its function on the application and whether it should re-consider the application for leave.

The court held that Lindsey, although not a party to the proceeding, was a person affected by the order and therefore entitled to make an application to set aside the order. The court also noted that Lindsey had not informed it of the outstanding costs orders from previous proceedings. However, upon reconsidering the application, the court found that the reasons for granting leave ex parte were still valid and refused to set aside the order granting leave. The court emphasised that it would have been more appropriate for Lindsey to challenge the costs orders in the relevant proceeding rather than making an application to set aside the order in this case.

Lindsey’s application to set aside the order granting leave was dismissed. The court emphasised that the appropriate course of action for Lindsey would have been to challenge the costs orders in the relevant proceeding. The costs of the application were awarded against Lindsey.