Attorney-General for the State of Victoria v Lindsay
[2004] VSC 432
•19 October 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 7476 of 1997
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| v | |
| DAVID JAMES LINDSEY | Defendant |
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JUDGE: | Morris J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 October 2004 | |
DATE OF JUDGMENT: | 19 October 2004 | |
CASE MAY BE CITED AS: | Attorney-General v Lindsey | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 432 | First Revision 13 October 2008 |
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APPEARANCES: | Counsel | Solicitors |
| The Defendant in person |
HIS HONOUR:
The applicant, Mr David James Sjostrom Clemens Lindsey, was declared a vexatious litigant on 16 July 1998 pursuant to s.21(2) of the Supreme Court Act 1986. As such he is precluded from commencing any proceeding without the leave of a judge of this court.
Section 21(4) of the Supreme Court Act provides that leave must not be given unless the court is satisfied that the proceedings are not, or will not be, an abuse of the process of the court. It is to be noted that the test mandated by the statute is not one whereby the court must refuse leave if it is satisfied that the proposed action would be an abuse of the court. Rather, the test is that for leave to be granted the court must be satisfied that the proceedings are not, or will not be, an abuse of the process of the court. It has been said in England that a power of the type applicable here should be very carefully and almost sparingly exercised, and only where there is a case of some substance to be argued: see Becker v. Teale (1971) 3 All R. 715.
The applicant has now made several applications for the leave of the Court to commence a proceeding against Philip Morris Ltd on the ground that lung disease from which he suffers was caused by smoking cigarettes manufactured by that company and was the result of the negligence of that company.
The first such application appears to have been made before Bongiorno, J. on 17 March 2003, the second application before Smith, J. on 1 May 2003, the third before Coldrey, J. on 21 May 2003, the fourth before Hollingworth, J. on 30 June 2004, and the fifth before Smith, J. on 22 September 2004. On each occasion leave has been refused. A useful history of these applications is set out in the reasons given by Hollingworth, J. on 30 June 2004.
On each occasion when application has been made, a critical concern that has been raised about the proposed action is whether a causal connection can be shown between the damages said to be suffered by Mr Lindsey and the alleged negligence of Philip Morris. This is a matter to which I will return because, in my opinion, it lies at the heart of whether or not the proposed proceeding might be an abuse of process.
Other reasons why leave has been refused on previous occasions relate to the applicability of certain medical evidence to the circumstances and also the form of the proposed statement of claim. I do not hold any concern that Mr Lindsey will not be able to produce medical evidence which links his current health condition to smoking. I think it is likely that his current health condition is linked to the fact that he has smoked for over thirty years, and that he would be able to prove that. As for the statement of claim, I have no doubt that it is important that a proper statement of claim be prepared before leave is granted under the particular provision, but I do regard that as a secondary question. The primary question should not be dependent upon the form of the proposed proceeding but rather upon the substance.
That brings me to the critical question, namely, that of a causal connection. Other judges in dealing with a similar application have made reference to their concerns about whether there is a likelihood that the damage suffered by Mr Lindsey from smoking has a necessary causal link with the alleged negligence of Phillip Morris. For example, on the most recent occasion, Smith, J. commented:
"The problem remains for Mr Lindsey, however, of establishing a causal connection between the alleged tortious conduct of Philip Morris and the development of the emphysema. It is clear from the material gathered and presented that Mr Lindsey commenced smoking, albeit at the age of approximately 14 years, at about the time that Philip Morris Ltd was obliged to and did place warnings on cigarette packets. It remains unclear on the material, however, how it is put that Philip Morris was negligent and how the negligence caused the present emphysema."
In a proposed statement of claim put before me today, Mr Lindsey proposes to allege that he was a user of Marlboro cigarettes from late 1972/early 1973 through to 1987 and a user of Longbeach Mild cigarettes from 1987 to 1999. He also seeks to allege that prior to 1 January 1973 Philip Morris negligently failed to include any warning on cigarettes manufactured by it; and, to the extent that he commenced smoking before 1973, this failure caused him to commence smoking. He also says that for some time after 1 January 1973 cigarettes without a warning continued to be sold in Victoria and, I infer, were smoked by him; and hence he was deprived of a warning during this period.
I think I should infer that the damage suffered to Mr Lindsey from smoking is likely to have been caused, or contributed to, by the fact that he smoked cigarettes over a long period of 30 years, and that it is highly improbable that his health problems, and the damage, is the result of cigarettes that he smoked before warnings were placed on cigarette packets in early 1973.
Mr Lindsey submitted to me that he would seek to prove that he became addicted to cigarettes and hence had no choice but to continue to smoke once addicted. Whilst I would not deny that there could be some basis for such a proposition, it is likely that, if warnings had been placed on cigarettes sold in Victoria prior to 1 January 1973, it would not have made any difference as to whether or not Mr Lindsey commenced smoking at that time. Thus, I am troubled by the prospect of Mr Lindsey being able to establish a causal connection between his smoking (before 1973) and the alleged tortious conduct of Philip Morris.
I am concerned that this action, if allowed to proceed, is likely to be an action that would amount to an abuse of process. I am satisfied on the balance of probabilities that the action is devoid of any realistic prospect of success. It is likely to simply waste the time and resources of the court. Because I have formed this view of the proposed case, I cannot be satisfied, as the statute requires, that the proceedings are not, or will not be, an abuse of the process of the court. The test that the statute requires to be applied is a high hurdle, as was observed in the English case to which I have already referred. I am not satisfied that Mr Lindsey has overcome that high hurdle.
The application for leave is dismissed; and finally dismissed.
Further, having regard to the fact that there have been so many similar applications before the court, I direct that any further applications in relation to the matter the subject of this application be made in writing and, at the discretion of the judge, be determined in writing in chambers.
(Discussion ensued.)
HIS HONOUR:
What I propose to order is this:
1.The application for leave to bring proceedings against Philip Morris Ltd is dismissed and finally dismissed.
2.I direct that if, contrary to the first order, any further like application is made, it must be made in writing and it may be determined by a judge in chambers.
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