Attorney-General for the State of Victoria v Lindsey

[2004] VSC 383

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7476 of 1997

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Plaintiff
V
DAVID JAMES LINDSEY	Defendant

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JUDGE:	Smith J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2004
DATE OF JUDGMENT:	8 October 2004
CASE MAY BE CITED AS:	Attorney-General for the State of Victoria v David James Lindsey
MEDIUM NEUTRAL CITATION:	[2004] VSC 383

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Practice and Procedure – vexatious litigant – application for leave to commence a proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	In person

HIS HONOUR:

1. Mr Lindsey has made a further application to the Court for leave to commence proceedings against Philip Morris Limited.  He alleges that the negligence of Philip Morris Limited has resulted in him developing emphysema.  To obtain leave he must satisfy the Court that the proceedings are not or will not be an abuse of process.

1. Mr Lindsey has made a further major effort to gather material and present it as well.   He has, in particular, obtained a further medical report from Dr Strangward which among other things supports a link between Mr Lindsey’s smoking and the development of emphysema.  Further, Dr Strangward has expressed the view that there is a connection between the length of time that cigarettes have been smoked and the damaging effect on the lungs.

1. 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 Limited 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 that negligence caused the present emphysema.  That condition, according to Mr Lindsey, was not identified until late 2002.

1. Even if there was evidentiary material placed before the Court which clearly identified the alleged negligent acts or omissions and supported a connection between the alleged negligence of Philip Morris Limited and the contracting of the emphysema, Mr Lindsey has yet to produce a satisfactory statement of claim.  I have no doubt that he has used his best endeavours to produce a satisfactory statement of claim.  The task is not easy at the best of times but is extremely difficult in a case of this nature.  In Mr Lindsey’s recent applications, Judges have urged Mr Lindsey to seek legal assistance.  His attempts, so far, have been unsuccessful.  His evidence suggests that there may be a degree of reluctance on his part to do what is required to get such assistance.  Alternatively, the truth may be that those he has approached have formed the conclusion that his case cannot succeed.  The fact remains, however, that unless he obtains legal assistance, the problems in presenting the material required to obtain leave are likely to be insurmountable. 

1. For the foregoing reasons, I am not satisfied that the proposed proceeding is not or will not be an abuse of process.

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