Attorney-General v Clemens (No 4)
[2010] VSC 6
•22 January 2010
| 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 JAMES CLEMENS (previously known as
DAVID JAMES LINDSEY) SEEKING LEAVE TO
COMMENCE A PROCEEDING PURSUANT TO
THE ORDER OF KELLAM J OF 16 JULY 1998
| THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| v | |
| DAVID JAMES CLEMENS (previously known as DAVID JAMES LINDSEY) | Defendant |
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JUDGE: | HARGRAVE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 August 2009, 22 January 2010 | |
DATE OF JUDGMENT: | 22 January 2010 | |
CASE MAY BE CITED AS: | Attorney-General v Clemens (No 4) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 6 | |
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PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to commence legal proceedings – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No appearance | |
| For the Defendant | Mr Clemens in person |
HIS HONOUR:
David James Clemens (previously 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 of this Court. Mr Clemens now seeks leave of this Court to pursue a negligence claim against the State of Victoria (‘the State’) in relation to his alleged cigarette addiction. He has previously brought similar applications.
Section 21(4) of the Supreme Court Act provides that the application must be refused unless Mr Clemens can demonstrate that the proposed proceeding is not or will not be an abuse of the process of the Court.
The onus rests on Mr Clemens to show that the proceeding will not be an abuse of process.[1]
[1]Phillip Morris Ltd v Attorney-General (Vic) (2006) 14 VR 538, [116].
Mr Clemens accepts that his application should be refused if the Court is of the opinion that the proposed proceeding is ‘foredoomed to fail’. That concession was rightly made.[2]
[2]Ibid, [85] (Maxwell P).
In substance, Mr Clemens’ current proposed claim is similar, if not identical, to his proposed claim against the Department of Education and Early Childhood Development, rejected by Hansen J,[3] and his earlier proposed claim against the State, rejected by Robson J.[4]
[3]Attorney-General for the State of Victoria v Clemens (unreported, Supreme Court of Victoria, Hansen J, 24 April 2009).
[4]Attorney-General for the State of Victoria v Clemens(No 3) [2009] VSC 297.
In his proposed indorsement of claim, Mr Clemens alleges that, from 1955, the State owed a duty of care to the Victorian community to take steps to eliminate the real and foreseeable risk of injury, loss and damage arising from the dangers of cigarette smoking. He alleges that from on or around 20 August 1955, the State knew, among other things, that cigarette smoking was the cause of lung cancer, that cigarette smoking was on the increase, that cigarette smoking produced seven per cent more deaths per year than any other cause, and that these facts needed to be known to a class of persons he describes as ‘the young’. He alleges that from 1958 to 1972 he did not know of these facts, and that in late 1971 or early 1972 he started smoking cigarettes.
Mr Clemens alleges that the State breached the postulated duty of care by failing to enact legislation to, among other things, educate the Victorian community about the dangers of cigarette smoking, increase the minimum smoking age, and compel tobacco companies to print warnings on cigarette packages. He says that as a result of the State’s negligence, he suffered injury in the form of smoking-related diseases.
In refusing Mr Clemens’ previous application, Hansen J considered that ‘there ought to be some evidence before [the Court] that could indicate an evidentiary foundation for the claim’.[5] His Honour was not satisfied that the evidentiary material put forward by Mr Clemens was sufficient to satisfy the requirements of s 21(4).[6] Robson J also adopted this approach.[7]
[5]Attorney-General for the State of Victoria v Clemens (unreported, Supreme Court of Victoria, Hansen J, 24 April 2009), [8].
[6]Ibid, [9].
[7]Attorney-General for the State of Victoria v Clemens(No 3) [2009] VSC 297, [9]-[11].
Further, both Hansen J and Robson J concluded that the form of the proposed claim by Mr Clemens was substantially unsatisfactory, in that it did not comply with the rules of pleading, requiring material facts to be pleaded which, if proved by evidence, would establish the contended for duty of care, breach, and causation of damage.[8]
[8]Attorney-General for the State of Victoria v Clemens (unreported, Supreme Court of Victoria, Hansen J, 24 April 2009), [12]; Attorney-General for the State of Victoria v Clemens(No 3) [2009] VSC 297, [12]-[13].
I respectfully agree with Hansen J and Robson J that these matters are relevant in considering an application under s 21(4). In order to demonstrate that a proposed proceeding is not or will not be an abuse of process, a vexatious litigant applying for leave under s 21(4) should place before the Court some evidence which provides an arguable basis for the proposed proceeding and, in addition, put forward an intelligible claim which complies with the basic pleading requirements contained in the Supreme Court (General Civil Procedure) Rules 2005. In my opinion, Mr Clemens has done neither of these things.
First, Mr Clemens has not placed any evidence before the Court which is additional to that placed before Hansen J and Robson J. The evidence relied upon establishes no more than the publication in a 1955 newspaper of an opinion by an eminent scientist, Sir Macfarlane Burnet, that he believed smoking was responsible for the increased rates of lung cancer in Australia. The existence and publication of that opinion, assuming it was brought to the attention of the State, does not provide an adequate evidentiary basis for the proposed claim which Mr Clemens seeks to bring.
Second, Mr Clemens’ proposed claim is deficient in a material respect. His affidavit, submissions and proposed indorsement of claim all assume that reasonable foreseeability of loss or damage is, of itself, sufficient to establish a duty of care on the part of the State. Beyond that, he makes no allegation in support of the novel claim that he seeks to commence. Simply, Mr Clemens submits that notice of Sir Macfarlane Burnet’s opinion, referred to above, gave rise to a foreseeable risk that members of the Victorian community may incur injury from cigarette smoking. For the purposes of argument, I will assume that to be correct.
While reasonable foreseeability is a necessary factor for the existence of a duty of care, it is not, of itself, a sufficient factor. In the case of a public body or governmental authority, numerous other factors are relevant.[9] It is unnecessary to set these out in the present context. None have been the subject of submission or proposed pleading by Mr Clemens.
[9]For example, see Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, [6]-[9], [84].
Importantly, Mr Clemens could point to no case where a government has been held to have a duty of care to legislate in response to a foreseeable threat of injury to the community or a class of person in the community.
Further, even where there is an existing statutory framework empowering a government or governmental authority to act in a manner which may avoid a foreseeable risk of injury to a class of persons in the community, the authorities disclose a reluctance to impose a duty of care. In Graham Barclay Oysters Pty Ltd v Ryan,[10] Gleeson CJ stated:
In the case of a governmental authority, it may be a very large step from foreseeability of harm to the imposition of a legal duty, breach of which sounds in damages, to take steps to prevent the occurrence of harm. And there may also be a large step from the existence of power to take action to the recognition of a duty to exercise the power. Issues as to the proper role of government in society, personal autonomy, and policies as to taxation and expenditure may intrude. Even where a statute confers a specific power upon a public authority in circumstances where mandamus will lie to vindicate a public duty to give proper consideration to whether to exercise the power, it does not follow that the public authority owes a duty to an individual, or a class of persons, in relation to the exercise of the power.[11]
[10](2002) 211 CLR 540.
[11]Ibid, [9].
In these circumstances, I am satisfied that the proposed proceeding is foredoomed to fail. Accordingly, I order that Mr Clemens’ application be refused.
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