Attorney-General v Clemens

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:

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.

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.

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.

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.

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!.

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.

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.

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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CaseChat Overview and Summary

In the matter of Attorney-General v Clemens, the Federal Court of Australia was tasked with considering an application by the respondent, Clemens, for leave to commence a proceeding against the Commonwealth. The applicant sought a declaration that certain actions by the Commonwealth were unlawful, along with an injunction and damages. The court's focus was on whether Clemens was a vexatious litigant, a determination that would affect the respondent's ability to proceed with his claims.

The primary legal issue before the court was whether Clemens qualified as a vexatious litigant under the Federal Court of Australia Act. This required the court to consider the history of Clemens's legal actions, specifically whether his claims were frivolous, oppressive, or brought without any reasonable prospect of success. The court also needed to assess whether granting leave to Clemens would be an abuse of process, given his previous litigation history.

The court meticulously reviewed Clemens's past litigation, noting a pattern of numerous unsuccessful legal actions, often with overlapping claims and parties. It concluded that Clemens's applications were repetitive, lacked merit, and were brought with the intention to harass or oppress. The court found that granting leave would facilitate further vexatious litigation, which would be an abuse of the court process. Accordingly, the application for leave was refused.

The court's final order was that Clemens's application for leave to commence a proceeding against the Commonwealth was dismissed. The court further determined that Clemens should not be granted leave to initiate the proceeding unless the court was satisfied that there were exceptional circumstances justifying it. The court did not find such circumstances present in this case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established