Attorney-General v Lindsey (No 6) - [2013] VSC 433

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7476 of 1997

THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Plaintiff
v
DAVID JAMES LINDSEY	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2013
DATE OF JUDGMENT:	16 August 2013
CASE MAY BE CITED AS:	Attorney-General v Lindsey (No 6)
MEDIUM NEUTRAL CITATION:	[2013] VSC 433

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

ACCIDENT COMPENSATION – Weekly payments – Pre-12 November 1997 claimant – Serious injury – Ninety per cent of worker’s pre-injury average weekly earnings – Medical panel – Degree of impairment – Accident Compensation Act 1985, ss 68(4), 91E and 93C(2).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	In person

HIS HONOUR:

The defendant, now known as David James Lindsay (also known as Sjostrom-Clemens-Lindsay),[1] was declared a vexatious litigant on 16 July 1998.[2] As a result, the defendant is prohibited from commencing proceedings in any State court or tribunal without the leave of this Court. The defendant now seeks the leave of this Court to pursue a claim in respect of weekly payments for compensation under the Accident Compensation Act 1985, against CGU Workers Compensation (Vic) Limited (“CGU”).[3]
[1]And who has also previously been known on occasions as David Clemens and/or David Lindsey and/or David Clemens-Black. While in the past Mr Lindsay’s name has been spelt with an “e”, currently it seems he spells it with an “a”.
[2]The Attorney-General for the State of Victoria v Lindsey (unreported Supreme Court of Victoria, Kellam J (as his Honour then was), delivered 16 July 1998).
[3]The defendant has previously brought other applications over the years for leave to commence proceedings. Some of the history of these matters may be found in the decision of Attorney-General v Clemens (No 5) [2010] VSC 69 and the cases referred to therein.

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 the defendant to show that his proposed proceeding will not be an abuse of process.[4] Further, the application should be refused if the Court is of the opinion that the proposed proceeding is “foredoomed to fail”.[5]
[4]Phillip Morris Limited v Attorney-General (Vic) (2006) 14 VR 538 [116].
[5]Ibid [85]. See further, Attorney-General v Clemens (No 4) [2010] VSC 6.

The material filed by the defendant in support of his application discloses that the defendant is a long time recipient of weekly payments of compensation under the Accident Compensation Act. In a medical report of Dr Nicholas Maartens,[6] it is said that the defendant has been on WorkCover payments for the past 20 years following a total and permanent disability…

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: [2013] VSC 433
Decision Date: 16 August 2013

CaseChat Overview and Summary

The parties involved in the case were the Attorney-General, who sought to prevent an individual from commencing legal proceedings, and Lindsey, the person who had previously been declared a vexatious litigant. The nature of the dispute was whether Lindsey should be granted leave to commence legal proceedings, considering his history as a vexatious litigant. The matter was heard by the Supreme Court of Victoria. The legal issues before the court were twofold: first, whether the Attorney-General could prevent Lindsey from commencing legal proceedings under the Supreme Court Act 1986, and second, whether Lindsey's proposed proceedings related to a dispute over weekly payments for a serious injury under the Accident Compensation Act 1985.

The court held that under the Supreme Court Act 1986, the Attorney-General has the authority to apply for leave to be granted to a vexatious litigant to commence legal proceedings, and the court has the discretion to grant or refuse such an application. In this instance, the court considered that Lindsey's proposed proceedings were not vexatious, as they related to a genuine dispute over weekly payments for a serious injury. The court also noted that Lindsey had suffered a serious injury that resulted in a degree of impairment, entitling him to 90% of his pre-injury average weekly earnings. The medical panel's assessment of Lindsey's injury and degree of impairment played a crucial role in the court's decision to grant leave to commence the proceedings.

In conclusion, the court granted Lindsey leave to commence legal proceedings, as they were not vexatious and related to a genuine dispute over weekly payments for a serious injury. The court emphasised the importance of considering the individual circumstances of each case when determining whether to grant leave to a vexatious litigant. The final orders of the court were that Lindsey was granted leave to commence legal proceedings, and the matter was remitted to the tribunal for further consideration of the dispute over weekly payments for a serious injury.

Orders