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 1^st Respondent	Mr S A O’Meara	Allens Arthur Robinson
No appearance by the 2^nd 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]
[1]Phillip Morris Limited v Attorney General (Victoria) (2006) 14 VR 538.

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

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.

Continue reading Clemens v Phillip Morris Ltd

Details

AGLC: Clemens v Phillip Morris Ltd [2008] VSCA 48
Case: [2008] VSCA 48
Decision Date: 20 March 2008

CaseChat Overview and Summary

Clemens filed a proceeding against Phillip Morris Ltd, asserting claims related to smoking-related illnesses. The dispute was heard and determined in the Supreme Court of Victoria. The central legal issue before the court was whether Clemens, identified as a vexatious litigant, required leave to commence an appeal against the trial judge's decision to dismiss his claims. The court considered the statutory framework provided by the Supreme Court Act 1986, specifically section 21, which outlines the circumstances under which leave to appeal may be granted.

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.

Orders