Attorney-General for the State of Victoria v Clemens (No 3)

[2009] VSC 297

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No. 7476 of 1997

IN THE MATTER OF AN APPLICATION BY DAVID JANES CLEMENS (also known as DAVID JAMES LINDSEY) SEEKING LEAVE TO COMMENCE PURSUANT TO THE ORDER OF KELLAM J OF 16 JULY 1998
THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Plaintiff
v
DAVID JAMES CLEMENS (also known as DAVID JAMES LINDSEY)	Defendant

---

JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2009
DATE OF JUDGMENT:	24 July 2009
CASE MAY BE CITED AS:	Attorney-General v Clemens (No 3)
MEDIUM NEUTRAL CITATION:	[2009] VSC 297

---

PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to commence a proceeding – Application refused

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff/Respondent	No appearance
For the Defendant/ Applicant	Mr Clemens appeared in person

HIS HONOUR:

1. Mr David Clemens (also known as David James Lindsey) was declared a vexatious litigant in July 1998.  As a result, Mr Clemens was prohibited from commencing proceedings in any state court or tribunal without leave.  Mr Clemens now seeks leave of this Court to pursue a negligence claim in relation to his cigarette addiction against the State Government of Victoria.  Mr Clemens has previously brought similar applications against a manufacturer of cigarettes and the Department of Education and Early Childhood Development of Victoria.

1. The application should be refused unless Mr Clemens can demonstrate that the proceedings are not or will not be an abuse of the process of the Court. Section 21(4) of the Supreme Court Act provides that:

Leave must not be given unless the Court, or if the order under subsection (2) so provides, the inferior court or tribunal is satisfied that the proceedings are not or will not be an abuse of the process of the Court, inferior court or tribunal.

The onus rests on Mr Clemens to show that the proceedings will not be an abuse of process.[1]

[1]          Phillip Morris Ltd v Attorney-General (Vic) (2006) 14 VR 538 at [116].

1. Mr Clemens submits that the State Government of Victoria owed a duty of care to the Victorian community to enact legislation which would prevent foreseeable injury, loss and damage to the community caused by cigarette smoking.

1. Mr Clemens says that on or around 20 August 1955, the State Government knew, amongst other things, that smoking cigarettes caused cancer, that cigarette smoking was on the rise, that cigarette smoking produced 7 per cent more deaths per year than any other cause, that cigarette smoke contained components which caused cancer, that incidence of lung cancer caused by cigarette smoking would rise into the future over a twenty year period and that there was a real risk of ‘the young’ smoking cigarettes and to address the problem of cigarette smoking, these facts needed to be made known to the young.

1. Mr Clemens says that from 1958 to 1972, he did not know of these facts and in late 1971 or early 1972, he started smoking cigarettes.

1. Mr Clemens says that the State Government was careless and did not take steps to eliminate the real risk of the foreseeable damage as a result of the young smoking cigarettes, for example, by enacting legislation to warn and/or educate the Victorian community of the facts which needed to be known about cigarette smoking, or by removing cigarettes from the Victorian community until the components in cigarette smoke which caused lung cancer were removed.

1. Mr Clemens says that as a result of the State Government’s negligence, he suffered injury.  He says he suffers from emphysema, pulmonary disease, small airways disease, smokers’ bronchitis and elevated carbon monoxide levels.

1. In substance, Mr Clemens’ current claim is similar to his earlier claim against the Department of Education and Early Childhood Development, rejected by Hansen J, where Mr Clemens claimed that the Department of Education was under a duty of care to warn and educate children attending its schools about the dangers of smoking.[2]

   [2]          Attorney-General for the State of Victoria v Clemens (unreported, 24 April 2009. Supreme Court of Victoria, Hansen J).

1. Hansen J considered that there ought to be some evidence before the court that could indicate an evidentiary foundation for the claim.  His Honour said:

…I think in the particular case that is sought to be commenced, there ought be some evidence before me that could indicate an evidentiary foundation for the claim. That does not mean an exhaustive going into evidence, but evidence that appropriately shows there is a basis for it.[3]

[3]Ibid at [8].

1. Hansen J found that in the absence of evidence that would go to matters as to the alleged knowledge of the defendant and other matters of breach and causation, his Honour was unable to be satisfied by the requirements of s 21(4).[4]  The evidence before Hansen J included newspaper extracts that Mr Clemens presented, which referred to cigarette smoking and the dangers of it, and information on the schools Mr Clemens had attended.[5]

   [4]Ibid at [9].

   [5]Ibid at [10].

1. Mr Clemens has not put any additional evidence before me over that which was put before Hansen J. I am of the opinion that the evidentiary material is insufficient to satisfy the requirements of s 21(4).

1. Hansen J also found that the form of the proposed statement of claim was unsatisfactory.  His Honour said:

In addition to the evidentiary aspect, there is, I think, a substantial lack of form in the proposed statement of claim. The statement of claim proceeds rather by bald assertion as distinct from the pleading of material fact which founds the conclusion expressed in a number of paragraphs such as the allegation of knowledge and what the proposed defendant did or did not do. These are, I think, important matters. As expressed, the proposed statement of claim rather skirts over very substantial difficulties in the establishment of duty, breach, and causation which the proposed proceeding would have to meet.[6]

[6]Ibid at [12].

1. The statement of claim before me is substantially similar to the statement of claim before Hansen J.  Where there are differences, I do not think that they sufficiently address the difficulties in the establishment of duty, breach and causation.

1. I am not satisfied that the proposed proceeding would not be an abuse of process and order that Mr Clemens’ application is refused.