Lindsey v Attorney-General for the State of Victoria

[2002] VSC 96

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7476 of 1997

DAVID JAMES LINDSEY	Applicant
v
THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Respondent

---

JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2002
DATE OF JUDGMENT:	25 March 2002
CASE MAY BE CITED AS:	Lindsey v The Attorney-General for the State of Victoria
MEDIUM NEUTRAL CITATION:	[2002] VSC 96

---

Vexatious litigant: Leave granted to commence a proceeding in the County Court pursuant to s. 93(4)(d) of the Transport Accident Act 1986 for leave to bring a proceeding to recover damages for injuries suffered in consequence of a motor vehicle accident.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	No appearance

HIS HONOUR:

1. On 16 July 1998, an order was made in this Court declaring the present applicant, David James Lindsey, to be a vexatious litigant pursuant to s.21(2) of the Supreme Court Act 1986. It was further ordered that he must not, without leave of this Court, continue or commence legal proceedings in this Court or in any inferior court or tribunal.

1. The application before the Court this day is made by David James Lindsey without summons, seeking an order of this Court that he be granted leave to institute proceedings in the County Court.  The nature of such proceedings I shall hereafter refer to.  In so far as this application is made without summons and notice of the same has not been served on the Attorney-General, on whose application the order was made on 16 July 1998, Lindsey informed the Court that he had been previously informed by the Department of Justice on behalf of the Attorney-General that it was not necessary to make the Attorney-General a respondent to any such application that he may make to be granted leave of this Court to institute proceedings in this Court or an inferior court.

1. By reference to the file in this matter, there is to be seen that there was filed with the Court on 12 July 2001 an affidavit sworn by David Lindsey, to which there was exhibited a letter dated 20 June 2001 from the Assistant Director, Legal Policy and Court Services of the Department of Justice directed to David Lindsey.  In that letter he was informed that it was not necessary for him to summons the Attorney-General to respond to any application of the nature that he now makes to the Court.

1. On 27 August 1999, the applicant sustained injuries when, while walking in Potter Street, Craigieburn, he was struck from behind by a motor vehicle.

1. It is provided by s.93(4)(a), (b) and (c) and sub-s.(6) of the Transport Accident Act 1986 as follows:

"(4) If -

(a)under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and

(b)        the degree so determined is less than 30 per centum -

the person may not bring proceedings for the recovery of damages in respect of the injury unless -

(c)        the Commission -

(i)  is satisfied that the injury is a serious injury; and

(ii) issues to the person a certificate in writing consenting to the bringing of the proceedings; or

(d)a court, on the application of the person, gives leave to bring the proceedings."

"(6)A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury."

1. On 12 March 2002, on an application brought by the present applicant to this Court for leave to institute proceedings against the driver of the motor vehicle which collided with him, it was held by Beach, J. that such proceeding could not be instituted until and unless it was determined that the applicant had sustained a "serious injury" within the meaning of s.93 of the Transport Accident Act.

1. It is now that the applicant seeks leave to institute proceedings in the County Court for it to determine that he has suffered, as a result of the aforesaid referred to motor collision, a "serious injury". 

1. In support of his application the applicant has sworn an affidavit, sworn 21 March 2002, to which there is exhibited a letter addressed to him, dated 17 July 2001, said to be written by Carlo Cresci, Team Coordinator, Common Law and Appeals Division, which letter states:

"Claim number:   99/02200.

Transport Accident on:   27 August 1999.

Your solicitors have requested TAC to grant a Serious Injury certificate allowing you to sue for lump sum damages in respect of your injury on the basis that it falls within the definition of 'serious injury' in the Transport Accident Act.

After carefully considering the submission made by your solicitors, the TAC has now concluded that your injury does not fall within the required definition of serious injury, so that the TAC is unable to provide you with a Serious Injury Certificate. 

We have written to your solicitors advising them of this decision. 

If you are unhappy with the decision not to provide you with a Serious Injury Certificate, you may apply to the County Court for a judge to determine whether you [sic] injury falls within the definition of serious injury in the Transport Accident Act. A diagram outlining this process is attached. This decision does not affect your entitlement to reasonable hospital, medical and rehabilitation expenses in the future provided the further treatment can be directly related to the transport accident."

1. It is in consequence of that letter, in effect, that the applicant now comes before this Court as a necessary step in his endeavour to have an order made that, as a result of the accident which occurred on 27 August 1999, he suffered a "serious injury".  It is necessary, by reason of the order made on 16 July 1998, that he be granted leave of this Court to institute such proceeding in the County Court before instituting such proceeding.

1. It is, in my view, not necessary or appropriate for me on this application to seek to inquire into the injuries, the nature of the same, the extent of the same, and give consideration to whether the injuries sustained by the applicant as a result of the aforesaid motor vehicle accident constitute a "serious injury".  That is for the County Court to determine on an application made to it, if I grant leave to the applicant to bring such proceeding.

1. In my view, having regard to the facts put before this Court, it is appropriate that I grant leave to the applicant to commence proceedings in the County Court at Melbourne for an order pursuant to s. 93(4)(d) of the Transport Accident Act 1986 for leave to bring proceedings to recover damages caused to him in consequence of being struck by a motor vehicle on 27 August 1999. Before such a proceeding can be initiated it is necessary for the County Court to give leave to the plaintiff to bring such proceeding and it is necessary, before the court grants such leave, for it to be satisfied that the injuries sustained by the applicant in consequence of that accident constitute a "serious injury".

1. Accordingly, the order that I make is -

That the applicant be granted leave to commence proceedings in the County Court at Melbourne for an order pursuant to s.93(4)(d) of the Transport Accident Act 1986 for leave to bring a proceeding for the recovery of damages caused to him in consequence of being struck by a motor vehicle on 27 August 1999 in Potter Street, Craigieburn.

---