Attorney-General v Clemens (No 4) - [2010] VSC 6

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] VSC 6
Decision Date: 22 January 2010

CaseChat Overview and Summary

In the case of Attorney-General v Clemens (No 4), the respondent, Clemens, sought leave to commence legal proceedings against the Attorney-General for the fourth time. The application was made under the Vexatious Proceedings Act 2001, which allows the court to refuse leave to proceed if the proceedings are frivolous or vexatious. The court was tasked with determining whether Clemens' application should be allowed to proceed and whether he qualified as a vexatious litigant. The proceedings arose from Clemens' ongoing litigation regarding the validity of the Vexatious Proceedings Act and his perceived mistreatment by the Attorney-General.

The primary legal issue before the court was whether Clemens' application to commence legal proceedings qualified as vexatious within the meaning of the Act. The court was required to consider the substance of Clemens' application, the history of his previous litigation, and whether there were any genuine prospects of success. Additionally, the court needed to determine whether Clemens' persistent litigation amounted to an abuse of the court process.

The court found that Clemens' application was indeed vexatious. It noted the respondent's history of numerous unsuccessful litigations, which demonstrated a pattern of litigation that was without merit and intended to harass or oppress the Attorney-General. The court emphasised that the Vexatious Proceedings Act was designed to protect the court system from such abuse. The court concluded that Clemens' application was frivolous and vexatious and, therefore, refused him leave to proceed with his legal action. The court also found Clemens to be a vexatious litigant under the Act, potentially subjecting him to further restrictions on his ability to commence proceedings without leave.

The final orders of the court were that Clemens' application for leave to commence legal proceedings was refused. Furthermore, the court declared Clemens to be a vexatious litigant, which could have implications for any future applications he might make without leave.

Orders