SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 7476 of 1997
| DAVID JAMES CLEMENS |
| v |
| PHILLIP MORRIS LIMITED ATTORNEY-GENERAL FOR THE STATE OF VICTORIA |
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JUDGES: | MAXWELL P and NEAVE JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 June 2007 | |
DATE OF JUDGMENT: | 20 March 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 48 | |
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PRACTICE AND PROCEDURE – Vexatious litigant – Leave granted to commence trial proceeding – Application for leave to commence appeal – Whether leave required – Application refused – Supreme Court Act1986, s 21.
WORDS AND PHRASES – “commence legal proceedings”.
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| APPEARANCES: | Counsel | Solicitors |
| The Applicant appeared in person | ||
For the 1st Respondent | Mr S A O’Meara | Allens Arthur Robinson |
No appearance by the 2nd Respondent | ||
MAXWELL P:
NEAVE JA:
On 16 July 1998, the applicant (‘Mr Clemens’) was declared a vexatious litigant on the application of the Attorney-General for Victoria. At that time he went under the name ‘David James Lindsey’. Kellam J, who made the declaration, also ordered that Mr Clemens ‘must not, without leave of this Court, continue or commence legal proceedings in this Court or any inferior court or tribunal.’ That order was made pursuant to s 21(3) of the Supreme Court Act 1986 (“the Act”).
On 7 January 2005, Mr Clemens applied to the Court pursuant to s 21(3) of the Act for leave to commence a proceeding against the respondent (‘Phillip Morris’), claiming damages for injuries suffered as a result of smoking cigarettes manufactured by it. The application was made ex parte and Mr Clemens was granted leave to commence the proceeding in the County Court. An application by Phillip Morris to set aside the order granting leave was refused. An appeal by Phillip Morris to this Court against the grant of leave was dismissed.[1]
The damages claim came on for trial in the County Court in May 2007, before a judge and a jury of six. The action was dismissed, the jury having found that there had been no negligence on the part of Phillip Morris causative of any injury sustained by Mr Clemens.
By summons dated 28 May 2007, addressed both to Phillip Morris and to the Attorney General, Mr Clemens sought leave ‘to commence an appeal’ and to file a notice of appeal out of time. As in the last proceeding in this Court, the Attorney-General advised that he intended to take no part in the application. Counsel who appeared for Phillip Morris stated that his client neither consented to nor opposed the application for leave to commence an appeal.
Is leave required?
Ordinarily, of course, no leave is required for an appeal from a final order in a County Court proceeding. In the present case, however, we consider that Mr Clemens does require leave, by reason of the prohibition imposed on him by the order declaring him to be a vexatious litigant.
The relevant parts of s 21 of the
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- AGLC
- Clemens v Phillip Morris Ltd [2008] VSCA 48
- Case
- [2008] VSCA 48
- Decision Date
CaseChat Overview and Summary
The court examined the definition and implications of "commence legal proceedings" as per the Act and the case law. It found that since Clemens had already commenced the trial proceeding, albeit with leave, the subsequent appeal was not a new proceeding and thus did not require additional leave. The court reasoned that the legislative intent behind requiring leave for vexatious litigants was to prevent repetitive and unfounded litigation, which was not applicable in this instance as the litigation had already begun.
Consequently, the court refused Clemens' application for leave to commence the appeal. The reasoning was grounded in the interpretation of statutory language and the specific circumstances of the case. No further orders were made by the court as the appeal was dismissed on the grounds that leave was not required to proceed.
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