Attorney-General v Clemens (No 5) - [2010] VSC 69

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

DAVID JAMES CLEMENS (previously known as DAVID JAMES LINDSEY)

Defendant

---

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

---

PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to commence legal proceedings – Application refused – Supreme Court Act 1986, s 21(4).

---

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).

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.

Keep reading for free

Create a free CaseChat account to read Attorney-General v Clemens (No 5) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] VSC 69
Decision Date: 11 March 2010

CaseChat Overview and Summary

The respondents, who are described as vexatious litigants, applied for leave to commence proceedings against the Attorney-General and others, seeking damages for alleged breaches of their constitutional rights. The application was brought under the Supreme Court Act 1986 (Vic), and was opposed by the Attorney-General. The court was required to determine whether the respondents should be granted leave to commence the proceedings, considering the criteria set out in section 21(4) of the Supreme Court Act 1986 (Vic).

The court considered the nature of the respondents' previous legal proceedings, which had been found to be frivolous or vexatious by other courts. The court found that the respondents' current application was an abuse of process, as it was based on the same or substantially similar grounds as previous proceedings that had been dismissed. The court also found that the respondents had failed to provide any new evidence or arguments that would warrant a different outcome. The court concluded that the application was vexatious, and refused the respondents' application for leave to commence proceedings.

The court's decision was based on its inherent jurisdiction to control its own process, and its power to prevent abuse of the court's procedures. The court found that the respondents' application was an abuse of process, as it was an attempt to re-litigate the same issues that had already been decided by other courts. The court also found that the application was vexatious, as it was brought without any reasonable prospect of success, and was likely to cause unnecessary expense and delay.

The court refused the respondents' application for leave to commence proceedings, and ordered that they pay the costs of the application. The court also made an order pursuant to section 86 of the Supreme Court Act 1986 (Vic), declaring that the respondents were vexatious litigants. This order has the effect of restricting the respondents' ability to commence further proceedings without the leave of the court.

Orders