Attorney-General v Clemens (No 5)
[2010] VSC 69
•11 March 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: | Beach J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2010 | |
DATE OF JUDGMENT: | 11 March 2010 | |
CASE MAY BE CITED AS: | Attorney-General v Clemens (No 5) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 69 | |
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PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to commence legal proceedings – Application refused – Supreme Court Act 1986, s 21(4).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No appearance | |
| For the Defendant | Mr Clemens in person |
HIS HONOUR:
Mr David Clemens (also known as David 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 the leave of this Court to pursue a negligence claim against the State of Victoria.[1] The proposed claim is for damages in respect of what is said to be “smoking-related injury” suffered by Mr Clemens on or about 12 October 2002. Mr Clemens has previously brought similar applications.
[1]At the commencement of the hearing, Mr Clemens raised with me the fact that in 1994, as counsel, I drew a statement of claim on his behalf against Carlton & United Breweries. He also referred to the fact that I represented a tobacco company. However, he went on to say that he did not see a conflict of interest because he was not seeking to commence proceedings against Carlton & United Breweries or Phillip Morris. Having drawn these matters to my attention, Mr Clemens was content for me to hear and determine his application.
Section 21(4) of the Supreme Court Act 1986 provides that the application must be refused unless the Court is satisfied 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 his proposed proceeding will not be an abuse of process.[2] Further, the application should be refused if the Court is of the opinion that the proposed proceeding is “foredoomed to fail”.[3]
[2]Phillip Morris Limited v Attorney-General (Vic) (2006) 14 VR 538, [116].
[3]Phillip Morris Limited v Attorney-General (Vic) (2006) 14 VR 538, [85]; Attorney-General v Clemens (No. 4) [2010] VSC 6.
In substance, Mr Clemens’ current proposed claim is a variation of proposed claims that have been rejected by Hansen J,[4] Robson J[5] and Hargrave J.[6]
[4]This was a proposed claim against the Department of Education and Early Childhood Development; Attorney-General for the State of Victoria v Clemens (unreported, Supreme Court of Victoria, Hansen J, 24 April 2009).
[5]This was a proposed claim against the State of Victoria: Attorney-General for the State of Victoria v Clemens (No. 3) [2009] VSC 297.
[6]This was a proposed claim against the State of Victoria: Attorney-General v Clemens (No. 4) [2010] VSC 6.
In Attorney-General v Clemens (No. 4),[7] Hargrave J described Mr Clemens’ proposed claim in the following terms:[8]
“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 1958–1972 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.”
[7][2010] VSC 6.
[8]Ibid, [6]-[7].
In his affidavit in support of the application, Mr Clemens deposes:
“9. IN CONCLUSION AND FOR COMPLETENESS, I state to this Court that when I was before there Honours, Hansen, Robson and Hargrave, I was unaware of the Crown Proceedings Act 1958, in the alternative if I was aware of the Crown Proceedings Act 1958 then then I would have argued it before the Court and any proposed proceeding would have conformed with aforesaid act.
THAT it was mutually contended on the 22 JANUARY, 2010, before His Honour Hargrave, His Honour made it clear on the record of the Court that his decision was only in relation to the proposed Statement of Claim originally before him in about AUGUST 2009, the Defendant being the State Government of Victoria.
THAT it was mutually understood between myself and His Honour that a reading of his reasons by myself would be required so as to determine the proper response, i.e., Appeal or other.
THAT I have read His Honours reasons and in the alternative I would have to agree with his reasons to a degree simply because I was ignorant of the law, the Statement of Claim was irregular, in as much as is relevant the Statement of Claim was not in accordance with law, i.e., the Crown Proceedings Act 1958 and the Supreme Court Rules of Procedure.
THAT any proposed proceeding I draft is by the County Court Rules of Procedure and even though similar to that of the Supreme Court Rules, there is a difference in wording when pleading a cause of action in as much as is relevant pursuant the Supreme Court Rules ‘in the alternative’ by the County Court Forms and Format which I have exhibited before this Court on more than one occasion ‘on the alternative’.
NOW having said all that His Honour knew that when I had read His reasons I would consolidate and be back before the Court with a fresh Exparte Application seeking leave to commence against the State of Victoria not the State Government of Victoria with a strengthened Statement of Claim in accordance with law both the Crown Proceedings Act 1958 and the Supreme Court Rules pertaining to Civil Procedures.”
In his proposed statement of claim, Mr Clemens alleges:
(a)In August 1955, the “Crown’s agent” was Sir Henry Bolte.[9]
(b)The Crown’s agent “owed a duty of care to others and the public to be watchful, attentive, cautious, prudent, and/or show reasonable care when acting for and/or in relation towards others and the public”.[10]
(c)The Crown’s agent “ought to have known that the dangers in cigarette smoking needed to be made known to the young”.[11]
(d)In late 1971 or early 1972, the plaintiff commenced smoking cigarettes when “he did not know the facts about the dangers in cigarette smoking”.[12]
(e)On or about 12 October 2002, the plaintiff suffered smoking-related injury.[13]
(f)The plaintiff’s injuries were caused by the negligence of the Crown agent in August 1955; first, by “failing in August 1955 to initiate steps in the Liberal Party which would have informed the young of the dangers in cigarette smoking”; and secondly, by “failing to exercise the powers vested in him to inform the young of the dangers in cigarette smoking”.[14]
(g)If the Crown’s agent, in August 1955, had “shown attentiveness, been watchful, cautious and/or prudent then, and/or shown reasonable care when acting for and/or in relation towards others and/or the public” and initiated the steps in the Liberal Party referred to above or exercised the powers vested in him referred to above, then the plaintiff would not have started smoking and would not have been injured.[15]
(h)From August 1955, “the young would have benefited from any steps initiated by the Crown’s agent then which would have made the facts known to them about the dangers in cigarette smoking”.[16]
[9]Paragraph 4 of the proposed statement of claim.
[10]Paragraph 7 of the proposed statement of claim.
[11]Paragraph 8 of the proposed statement of claim.
[12]Paragraph 9 of the proposed statement of claim.
[13]Paragraph 10 of the proposed statement of claim.
[14]Paragraph 11 of the proposed statement of claim.
[15]Paragraph 12 of the proposed statement of claim.
[16]Paragraph 14 of the proposed statement of claim.
In argument, Mr Clemens accepted as a fair summary that what he was endeavouring to do following the decision of Hargrave J was:
(a)first, to comply with the Supreme Court Rules of Pleading; and
(b)secondly, to plead a case in reliance upon the Crown Proceedings Act, alleging that the State of Victoria is vicariously liable for its agent, Sir Henry Bolte.[17]
[17]Cf s 23(1)(b) of the Crown Proceedings Act 1958.
Mr Clemens’ three previous applications were refused on the grounds of failing to establish the existence of an evidentiary foundation sufficient to satisfy the requirements of s 21(4) and failing to put forward an intelligible claim which complies with the basic pleading requirements contained in the Supreme Court (General Civil Procedure) Rules 2005.
Putting to one side the failure of Mr Clemens’ proposed statement of claim to comply with basic 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, there is no basis, on the material before the Court, upon which it could ultimately be concluded that Sir Henry Bolte owed Mr Clemens the duty pleaded or any other relevant duty of care.
In refusing Mr Clemens’ last application, Hargrave J dealt in passing with the question of whether a government could be held to have a duty of care to legislate. Because of Mr Clemens’ failure to plead the material facts which would establish breach of duty and causation of damage, it is unclear whether the proposed pleading encompasses an allegation that Sir Henry Bolte breached the alleged duty of care owed by him in failing to arrange for legislation to be enacted or to take steps which would have resulted in legislation being enacted. However, in argument, it became clear that the case Mr Clemens seeks to run is one which involves alleging that Sir Henry Bolte breached a duty of care in failing to take steps to have legislation enacted. Such a claim could not possibly succeed. As was said by Gunn J in Collins v Saskatchewan Rural Legal Aid Commission & Ors[18] “There is no such thing as a private law duty of care to legislate”.[19]
[18][2002] SKQB 201, [64].
[19]See further James v The Commonwealth (1939) 62 CLR 339, 372 per Dixon J; Bienke & Ors v Minister for Primary Industries and Energy (1996) 63 FCR 567, 596; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, [32] per Gaudron J; [170] per Gummow J and Graham Barclay Oysters Pty Ltd v Ryan (2002) 221 CLR 540, [14] per Gleeson CJ.
There being no basis for the duty of care contended for by Mr Clemens, I am satisfied that the proposed proceeding is foredoomed to fail. Further, in these circumstances, the proceeding would be an abuse of process. Accordingly, I order that Mr Clemens’ application be refused.
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