Attorney-General for the State of Victoria v Clemens (formerly Lindsey)
[2008] VSC 370
•23 September 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7476 of 1997
| THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| v | |
| DAVID JAMES CLEMENS (FORMERLY LINDSEY) | Defendant |
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JUDGE: | HANSEN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 August 2008 | |
DATE OF JUDGMENT: | 23 September 2008 | |
CASE MAY BE CITED AS: | Attorney-General for the State of Victoria v Clemens | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 370 | |
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Vexatious litigant – Granted leave ex parte to commence proceeding – Proceeding commenced in County Court – Defendant to County Court proceeding seeks leave be set aside – Reconsideration of original application – Whether proceeding foredoomed to fail and thus an abuse of process – Supreme Court Act 1986, s 21(4).
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APPEARANCES: | Counsel | Solicitors |
| No appearance for the plaintiff | ||
| The defendant in person | ||
| For Philip Morris (Australia) Limited | Mr R J Stanley QC and Mr S A O’Meara | Allens Arthur Robinson |
HIS HONOUR:
This is an application to set aside an order I made on 13 May 2008 on the ex-parte application of David James Clemens (formerly Lindsey). Mr Clemens was declared to be a vexatious litigant on 16 July 1998, and by the same order prohibited from commencing legal proceedings in this Court, an inferior court or a tribunal. Section 21(4) of the Supreme Court Act 1986 provides that the Court must not give a vexatious litigant leave to commence any legal proceeding “unless the Court … is satisfied that the proceedings are not or will not be an abuse of the process of the Court, inferior court or tribunal”. By my order I gave Mr Clemens leave, pursuant to s 21(4) –
“to commence a proceeding in the County Court against Philip Morris (Australia) Limited for damages for breach of a duty of care, such proceeding to be brought by writ endorsed with a statement of claim in the form and to the effect of the draft writ and statement of claim contained in exhibits DC.003 and DC.004 to the affidavit sworn by the defendant/applicant on 7 April 2008.”
On 20 June 2008 Philip Morris (Australia) Limited (“PMAL”) filed a summons seeking orders pursuant to r 46.08 of Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2005 or the inherent power of the court, that my order be set aside and that Mr Clemens’ application for leave be dismissed. The application is put on the basis that Mr Clemens’ proceeding in the County Court is bound to fail and, hence, is an abuse of process of the County Court.
Following my order, on 26 May 2008 Mr Clemens commenced a proceeding in the County Court by filing a writ in his name as plaintiff and PMAL as defendant, and bearing the following general endorsement –
“THE DEFENDANT in 1955 owed a duty to take reasonable care to potential consumers of it’s product, THE DEFENDANT by not extracting ‘NICOTINE’ and or by adding 000’s of CARCINOGENIC/TOXIC CHEMICALS which would cause foreseeable PERIL, HARM, DAMAGE OR INJURY to potential consumers of it’s products HAVE BREACHED SAID DUTY OWED. On the 11th OCTOBER, 2002, the Plaintiff suffered injury, and the Plaintiff claims – DAMAGES.”
It is convenient to call this proceeding “the PMAL proceeding”. It is to be noted that the writ was not endorsed with the statement of claim identified in and required by my order. Nevertheless the general endorsement stated the essence of Mr Clemens’ proposed basis of claim.
The following steps have been taken in the PMAL proceeding.
(a)The writ was served on 6 June 2008.
(b)On 13 June 2008 PMAL filed a conditional appearance and a request for trial by judge and jury.
(c)On 18 June 2008 Mr Clemens filed and served a statement of claim. Among other things the statement of claim alleged that –
(i)in 1955 PMAL commenced to manufacture and distribute its products in Australia.
(ii)PMAL owed a duty of care to potential consumers of its products, which duty it breached by failing to avert a danger of damage or injury to consumers.
(iii)up to late 1971 or early 1972 when Mr Clemens became a consumer of PMAL’s product, PMAL had not addressed the dangers in safety to potential consumers –
vin 1955 PMAL knew its product contained nicotine, a drug of addiction and dependence, and did not remove it;
vin 1955 PMAL knew its product contained toxic chemicals which would cause damage or injury;
vin 1955 PMAL knew its product would contain toxic chemicals which would cause damage or injury as PMAL incorporated them into its product.
(iv)Effectively from 1 January 1973 there began to be printed on PMAL’s product a warning that smoking was a health hazard, but without stating the reasons why. By that time PMAL knew that consumers of its products would not be able to stop such consumption.
(v)Since 4 March 1958 Mr Clemens had been in close proximity to PMAL’s products as a potential consumer and then as a customer.
(vi)On 11 October 2002 Mr Clemens suffered injury being pulmonary disease, emphysema and bronchitis. The injuries were caused by PMAL’s products and failure in 1955 to take any proper precaution to address the dangers in safety to potential consumers. The injuries would not have occurred had PMAL in 1955 manufactured a product free of nicotine and toxic chemicals and addressed itself to the dangers in safety to potential consumers and manufactured a product safe for use.
(vii)Had Mr Clemens known in late 1971 or early 1972 about the inherent dangers of PMAL’s products he would not have become a consumer of them.
(d)On 1 July 2008, following a request by Mr Clemens, a County Court judge fixed a directions hearing for 8 August 2008.
(e)On 9 July 2008 Mr Clemens served an amended statement of claim, a notice to admit facts and a notice to admit documents. Mr Clemens prepared the amended statement of claim as a consequence of being provided with (as an exhibit to an affidavit sworn on 20 June 2008 by PMAL’s solicitor) a sale of business agreement between PMAL and Philip Morris Limited (“PML”); I refer to the agreement below. Among other things, the amended statement of claim included the allegation that in 1971 or 1972, when Mr Clemens became a consumer of Marlboro cigarettes, Marlboro was manufactured by PMAL and PML. It was alleged that from 4 March 1958 (when he was born) until 1 June 1967 he was “in proximity to Toxic and Carcinogenic Chemicals produced by the Defendants product by way of exposure to others second hand smoke”, and that such exposure caused his damage or injury.
(f)On 18 July 2008 PMAL wrote to Mr Clemens contending that my order did not permit him to file an amended statement of claim, and on 22 July 2008 PMAL filed a summons seeking an order that the amended statement of claim be disallowed. Also on 22 July 2008 PMAL filed and served notices of dispute in response to the notice to admit facts and notice to admit documents.
The first proceeding – against Philip Morris Limited
As a matter of context it is necessary to refer to an earlier proceeding in the County Court in which Mr Clemens sued PML in negligence for damages for injury suffered by him as a result of smoking cigarettes manufactured by PML. This proceeding may be referred to as “the PML proceeding”. Mr Clemens commenced the PML proceeding on 18 January 2005 pursuant to leave granted by Gillard J.
The statement of claim in the PML proceeding was amended a number of times. In its final form it contained the following allegations:
(a)at all relevant times PML was an “importer, manufacturer and distributor of tobacco products”.
(b)in late 1971 or early 1972 Mr Clemens commenced to smoke and use Marlboro cigarettes, a tobacco product of PML. He was then about 13 to 13½ years, having been born on 4 March 1958, and did not know that smoking PML’s tobacco product caused disease or nicotine addiction.
(c)believing it was safe to do so, and not being warned otherwise, Mr Clemens began to smoke Marlboro cigarettes on a daily basis and did so until 1987.
(d)as a result, on 11 October 2002 Mr Clemens suffered damage or injury being emphysema, pulmonary disease, smokers bronchitis and symptoms of nicotine dependence.
(e)as manufacturer, PML owed Mr Clemens a duty to warn of the product’s inherent dangers associated with use; his damage and injury was caused by a breach of that duty. The breach was particularised as:
(i)A failure to warn that Marlboro cigarettes were a dangerous product.
(ii)A failure to warn that Marlboro cigarettes contained or produced by way of smoke carcinogens or toxic chemicals which through inhalation of tobacco smoke to the user’s lungs would cause long term injury, disease, disorder and diminished expectancy of life.
(iii)A failure as manufacturer to warn that Marlboro cigarettes contained nicotine, a poison, an addictive substance which would cause in a user a dependency upon it.
In its defence to this amended statement of claim PML admitted the plaintiff’s allegation that it was an importer, manufacturer and distributor of tobacco products, and stated that –
(a)it was incorporated on 24 May 1967.
(b)that it had been and was the manufacturer and distributor, and importer and distributor, in Victoria of Marlboro cigarettes.
As to the balance of the defence, for present purposes it is sufficient to note that liability was denied.
The PML proceeding was tried before a jury in May 2007. In accordance with the verdict of the jury judgment was entered for PML.
Mr Clemens applied to the Court of Appeal for leave to appeal but, on 20 March 2008, his application was refused.
Leave for the PMAL proceeding
On 7 April 2008 Mr Clemens swore and filed an affidavit in support of his application for leave which I allowed by my order of 13 May 2008. The application came before me in the Practice Court on 15 April 2008 when Mr Clemens, but no other party, appeared. After some discussion with Mr Clemens I adjourned the application to 9 May 2008 before myself and directed that Mr Clemens serve his affidavit and any further affidavits on the Attorney-General. Mr Clemens swore and filed a further affidavit on 28 April 2008. As it transpired I heard the application on 13 May 2008. No other party appeared.
In addition to reading and considering Mr Clemens’ affidavits I read the decision of Gillard J of 9 March 2005 by which he refused an application by PML to set aside his order granting Mr Clemens leave to commence the PML proceeding[1], and the decision of the Court of Appeal which dismissed an appeal from that decision[2]. I also had the benefit of having previously read the file insofar as it related to Mr Clemens’ attempts to obtain leave to bring the case for which Gillard J ultimately granted leave. Indeed my refusal of leave was the penultimate refusal before Gillard J granted leave.
[1]The Attorney-General for the State of Victoria and Philip Morris Ltd v Lindsey [2005] VSC 53.
[2]Philip Morris Limited v Attorney-General for the State of Victoria (2006) 14 VR 538.
In considering Mr Clemens’ affidavits it seemed apparent that the leave he now sought was to commence a proceeding for damages for negligence, for which the County Court was the appropriate court, against PMAL as distinct from PML and on a different allegation of negligence. Whereas previously the negligence was a failure to warn as pleaded, it was now a failure to extract nicotine or to have added carcinogenic or toxic chemicals. In these circumstances, and being satisfied that it was appropriate to do so, I granted leave on 13 May 2008.
I should add that I did not understand the gravamen of Mr Clemens’ case to be that his alleged damage or injury was a consequence of exposure to the smoke of other persons smoking Marlboro cigarettes.
PMAL’s application
PMAL’s application was supported by two affidavits sworn by its solicitor, Ian Peter Scott O’Donahoo. In his first affidavit, sworn on 20 June 2008, Mr O’Donahoo stated that where he deposed to facts on the basis of information, the source of the information was the secretary of PMAL and PML, Ms Melissa Whiting, and he believed the information to be true and correct. The significance of such information was in relation to the following matters to which he deposed in his affidavit, namely:
(a)PMAL was incorporated on 17 March 1954.
(b)From in or about March 1955 until 30 June 1967 PMAL carried on a business of manufacturing, importing and marketing cigarettes, including Marlboro cigarettes, in Australia.
(c)PML was incorporated on 24 May 1967.
(d)By a sale of business agreement dated 1 June 1967 PMAL sold to PML all of the business assets of PMAL as at the commencement of trading on 1 July 1967. The agreement, which was produced as an exhibit to the affidavit, provided that the assets purchased by PML (which was recited to be a wholly-owned subsidiary of PMAL) were all goodwill, freehold land and buildings with the exception of that in South Australia, all plant, machinery, fixtures, fittings and motor vehicles, the value of all capital work in progress, all of PMAL’s stock in hand and in transit, and debtors and payments (but not including trade debtors).
PMAL’s application came on before me on 29 July 2008 when, by reason of the late receipt by Mr Clemens of a substantial written submission of PMAL, the hearing was adjourned to 26 August 2008. By that date Mr Clemens had sworn and filed two further affidavits.
At the hearing on 26 August I was addressed by counsel for PMAL who also provided a supplementary written submission, and by Mr Clemens who also provided a written reply.
Subsequent to the hearing Mr Clemens sent me, without prior leave, a further 10 pages of handwritten material which contained a proposal for a proceeding against PML including a statement of claim to be used in that proceeding. PMAL did not respond to these further materials. I refer to the proposal later.
In PMAL’s initial written submission the application was put on two bases, namely:
(a)That in presenting his application Mr Clemens misled the Court by the misstatement and non-disclosure of material facts; and
(b)That having regard to the material facts the Court could not be satisfied that the proposed proceeding was not or would not be an abuse of the process of the County Court.
At the hearing on 26 August 2008 PMAL’s counsel pressed the second basis of the application although without abandoning the first. For the purpose of the submission the relevant facts were that PMAL had ceased to be the manufacturer, importer or marketer of cigarettes including Marlboro as from 1 July 1967, and Mr Clemens claimed not to have smoked Marlboro cigarettes until late 1971 or early 1972. In these circumstances the Court could not be satisfied that the proposed proceeding was not foredoomed to failure and, thus, counsel submitted, the proposed proceeding was an abuse of the process of the County Court.
The submission was based on the hearsay evidence of Mr O’Donahoo based on the information received from the secretary of PMAL and PML. Mr Clemens did not seek to cross-examine Mr O’Donahoo, advance evidence to the contrary of that deposed to, or otherwise challenge the correctness of his evidence. Indeed he accepted the evidence as reliable. I accept the evidence of Mr O’Donahoo as to PMAL and the sale of business agreement.
Nevertheless Mr Clemens submitted that when he commenced to smoke Marlboro cigarettes – in late 1971 or early 1972 – he may have been smoking cigarettes manufactured by PMAL. This submission amounted to an unsubstantiated assertion that when PMAL finished manufacturing, importing or distributing Marlboro cigarettes there was a stockpile remaining of such proportion that they were still being sold to consumers in late 1971 or early 1972. But the submission went further than this, as it had to. It was to be inferred that the Marlboro cigarettes consumed by Mr Clemens included cigarettes manufactured by PMAL. The difficulty with the submission was that it lacked evidentiary support. There was no evidence as to the quantity of Marlboro cigarettes manufactured or imported by PMAL and on hand at the end of 30 June 1967 and acquired by PML pursuant to the sale agreement. Nor was there any evidence as to what happened with any such stock, in particular as to whether it was sold in Victoria or elsewhere and, if in Victoria, where and for how long. It might be surmised that in the way of things, any such stock would not still have been on retail shelves in late 1971 or early 1972 but I do not know and cannot speculate one way or the other. Even if it be assumed that some quantity of such stock might have been on retail shelves in a business in Melbourne from which Mr Clemens purchased Marlboro cigarettes there is no evidence that he purchased an item of such stock or from which it might be inferred that he purchased such stock. Then again there is the further issue as to the likely quantity of such stock that he might have purchased, which is important for it is related to the causal question whether the smoking of that quantity of Marlboro manufactured or imported by PMAL was a cause of the damage or injury claimed in the proceeding.
These are not idle points. They directly bear upon the question whether Mr Clemens’ proceeding is not or will not be an abuse of the process of the County Court. The question involves the Court being satisfied as to a negative, and on this issue Mr Clemens bears the onus; see Philip Morris Limited v Attorney-General for the State of Victoria[3]. A proceeding which is foredoomed to failure is to be regarded as an abuse of process for this purpose[4].
[3](2006) 14 VR 538.
[4](2006) 14 VR 538 at 542 [20].
A further point made by Mr Clemens, and which I have not overlooked, was based on PML being a subsidiary of PMAL. As I understood it, he submitted that PMAL did not remove nicotine, and commenced the placement of toxins and carcinogens in Marlboro cigarettes, and should continue to be liable for the consequences thereof when its subsidiary PML continued the manufacture of such cigarettes. In other words, PMAL continued its past practices through its subsidiary PML. In effect PMAL was responsible in law for the negligent acts of PML, being the negligence alleged in the PMAL proceeding. I do not accept the submission.
At this point it is convenient to refer to the statement of claim which Mr Clemens filed in the County Court on 18 June 2008. The allegation against PMAL is that PMAL had commenced to manufacture and distribute its products in Australia in 1955. It is implicit in the pleading that PMAL had continued such activity until at least 11 October 2002 when Mr Clemens suffered injury. That is the case as I had understood it when I gave leave. It is a case which, in the light of the evidence now before me, cannot be put. It is foredoomed to failure and, as such, the proceeding would be an abuse of the process of the County Court.
In reaching this conclusion I have not found it necessary to consider the formulation of Mr Clemens’ claim in the PML proceeding. It is to be noted that in that proceeding PML alleged that it was incorporated on 24 May 1967 and admitted that it was an importer, manufacturer and distributor in Victoria of Marlboro cigarettes in the period when Mr Clemens alleged he smoked Marlboro cigarettes, namely from late 1971 or early 1972. The case went to the jury on that basis. In the PMAL proceeding Mr Clemens pleads to the contrary in alleging that PMAL manufactured Marlboro cigarettes. As I have accepted, PMAL ceased to manufacture, import and distribute Marlboro cigarettes on 30 June 1967 which was four plus years before Mr Clemens alleges that he commenced smoking Marlboro cigarettes. This supports my above conclusion.
It is next convenient to refer to the amended statement of claim Mr Clemens filed in the PMAL proceeding. This was filed subsequent to Mr O’Donahoo’s first affidavit which included the evidence that PMAL had ceased to manufacture Marlboro cigarettes on 30 June 1967. I referred earlier to two allegations in this amended pleading. The amendments were more extensive than reference to those two amendments would indicate. Indeed the amendment was a substantial re-draft. Mr Clemens exhibited the amended statement of claim to an affidavit. He told me that it was the case he desired to put and sought leave accordingly. If I was not agreeable he would withdraw it at the next hearing in the County Court and revert to the original statement of claim. As is apparent, it differs from that in respect of which I gave leave. As to this, I do no more than make some observations about the two allegations I referred to earlier.
The first allegation was that PMAL manufactured Marlboro cigarettes in 1971 or 1972 when Mr Clemens commenced to consume them. Mr Clemens placed no evidence before me to substantiate this allegation. And I have found the contrary to be the case.
The second allegation was that Mr Clemens had suffered damage or injury as a consequence of exposure to the smoke of other persons smoking Marlboro cigarettes. It is not to be overlooked in this respect that the initial statement of claim included the allegation that since his birth on 4 March 1958 Mr Clemens had been “in close proximity to the Defendant’s Products as a Potential Consumer then that of a Customer”. Thus there was an allegation of exposure to the smoke of other persons. In his oral submissions Mr Clemens relied on this allegation stating that his older brothers and father had smoked Marlboro and other cigarettes manufactured by “Philip Morris” and that he was thereby exposed to smoke from such cigarettes prior to his commencing to smoke Marlboro in late 1971 or early 1972. Even if this statement was to be accepted the present case is postulated on the false premise that PMAL manufactured Marlboro cigarettes after 30 June 1967 and that Mr Clemens commenced smoking them in late 1971 or early 1972. Mr Clemens sought to meet this difficulty at a late stage in his oral submissions. He said that his claim was that his injury was caused by the toxic and carcinogenic chemicals in cigarettes smoked by others. When I asked him if he was complaining about what was in Marlboro cigarettes from when he commenced smoking them in 1971 he said “That is a contributing factor but then [it] is up to [PMAL] to say to the Court well it wasn’t the first 13 years, it was the rest of the time but it’s the toxic and carcinogenic chemicals I’ve been exposed to in the first 13 years of my life”.
Nevertheless the case has to confront evidentiary difficulties of the kind mentioned earlier as to proof of smoking Marlboro cigarettes after 30 June 1967 that were manufactured by PMAL prior to that date. And it has the added evidentiary difficulty of establishing that the passive smoking relied on prior to or after 30 June 1967 was of Marlboro cigarettes or other cigarettes manufactured by PMAL, and when such passive smoking occurred, and of establishing a causal link between such passive smoking and the damage or injury alleged to have been suffered on 11 October 2002. Even if the passive smoking aspect could be regarded as a basis of claim separate from the plea of smoking PMAL manufactured cigarettes after late 1971 or early 1972, it would not be correct to continue the leave granted on 13 May 2008. Mr Clemens has not established an evidentiary basis on which I could properly be satisfied under s 21(4) that the County Court proceeding is not or will not be an abuse of process.
A new proposal
I referred earlier to Mr Clemens having provided further documentation subsequent to the hearing on 26 August. In the documents Mr Clemens proposed, in an endeavour to resolve PMAL’s application, that in lieu of the present proceeding he be granted leave to commence a proceeding in the County Court against PML for breach of a duty of care to potential consumers. A statement of claim for the new proceeding was provided. For the purpose of enabling Mr Clemens to bring this new proceeding, my order made on 13 May 2008 was to be revoked or varied.
Conclusion
It is important to bear in mind that the application before me is to set aside the order made on 13 May 2008 which gave Mr Clemens leave to commence a proceeding in the County Court. The order was specific that the claim was to be by the draft writ and statement of claim identified in my order. The present application requires a rehearing of the original application but in the light of the additional materials placed before me. I have referred to Mr Clemens’ amended statement of claim and to his request, in effect, that the leave be extended to encompass a claim as expressed therein which, as I have mentioned, differs from that I authorised by the grant of leave. Then, in the closing stages of the hearing Mr Clemens sought leave to add PML as the defendant to the proceeding on the basis that PML had failed to remove the toxic and carcinogenic chemicals and the nicotine from cigarettes. This, he said, was all a new case. I do not consider it appropriate to accede to these applications which substantially differ from that which I was prepared to authorise. All the more so do I hold the same view in relation to the proposal which was submitted to me following the hearing on 26 August. The safe and proper way to dispose of the matter is to rule on the application which concerns, and concerns only, the order made on 13 May 2008. As to that I am of the view for the reasons discussed above that PMAL’s application should be allowed, my order made on 13 May 2008 set aside and Mr Clemens’ application dismissed. If Mr Clemens desires to bring another application he should do so afresh on proper materials.
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