Attorney-General v Clemens

[2008] VSC 564

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

No. 7476 of 1997

ATTORNEY-GENERAL	Plaintiff
v
DAVID JAMES CLEMENS (also known as DAVID LINDSEY)	Defendant

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2008
DATE OF JUDGMENT:	4 December 2008
CASE MAY BE CITED AS:	Attorney-General v David James Clemens
MEDIUM NEUTRAL CITATION:	[2008] VSC 564

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

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	Mr D Clemens (aka Mr D Lindsay) In person

HIS HONOUR:

1. Before the court is an application by David Clemens, also known as David James Lindsey, for leave pursuant to section 21 of the Supreme Court Act to commence a proceeding. Mr Clemens has been declared a vexatious litigant and accordingly he can only commence a proceeding with the leave that is now sought.

1. Subsection 4 prohibits my granting leave unless I am satisfied that the proceeding which is contemplated is not or will not be an abuse of the process of the court.

1. The proceeding in question is a proceeding which is identified in Mr Clemens' affidavit of 28 November 2008 in Annexure B.  It is proposed to be issued, according to the document, in the County Court of Victoria in its criminal division.  The document itself, however, has the hallmarks of a civil claim to be brought.

1. The thrust of the claim which is proposed is that Mr Clemens has suffered bodily injury in October 2002 as a consequence of his using tobacco products produced by Philip Morris Ltd or its predecessor in law, Philip Morris Australia Ltd. 

1. The allegation in the claim is, and I quote,

The bodily injury complained of by the plaintiff was caused by the defendant's recklessness effectively from the 1^st July 1967, mixing ‘Toxic and Carcinogenic Chemicals’ LETHAL IN NATURE AND CONTENT into its products, disregarding the possible consequence of its conduct!.

1. A document such as this prepared by a self represented litigant must be read in a generous way, in a way that does not stick on detail or on formalities.  The gist of the claim, and this is also how Mr Clemens explained it, is that the conduct of the defendant was reckless.  His assertion that this is a common law offence is just not correct. 

1. Insofar as recklessness could give rise to a civil proceeding, the nearest I can imagine it would be would be a claim in negligence.  Mr Clemens, however, disavows any claim in negligence, as indeed he must because an earlier application to bring a claim in negligence against this defendant was refused as recently as 17 November this year.  

1. In all the circumstances, I do not see this as being a case with any prospect of success or, in substance, any different from the claim which was rejected by the court last month.  Accordingly I refuse leave.  The application a refused.

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