Lindsey v Philip Morris Limited

FEDERAL COURT OF AUSTRALIA

Lindsey v Philip Morris Limited [2004] FCAFC 40

PRACTICE AND PROCEDURE - appeal – dismissed as incompetent

Trade Practices Act 1974 (Cth) s 52

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Federal Court Rules O20 r2, O52 r2, r4, r10, r18

DAVID JAMES LINDSEY (NOW KNOWN AS DAVID JAMES SJOSTROM-CLEMENS-LINDSEY) v PHILIP MORRIS LIMITED

V55 OF 2004

WHITLAM, MARSHALL and FINKELSTEIN JJ
26 FEBRUARY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA REGISTRY	V55 OF 2004

BETWEEN:	DAVID JAMES LINDSEY (NOW KNOWN AS DAVID JAMES SJOSTROM-CLEMENS-LINDSEY) APPELLANT
AND:	PHILIP MORRIS LIMITED RESPONDENT
JUDGES:	WHITLAM, MARSHALL and FINKELSTEIN JJ
DATE OF ORDER:	26 FEBRUARY 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed as incompetent.

2.The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V55 OF 2004

BETWEEN:	DAVID JAMES LINDSEY (NOW KNOWN AS DAVID JAMES SJOSTROM-CLEMENS-LINDSEY) APPELLANT
AND:	PHILIP MORRIS LIMITED RESPONDENT

JUDGES:	WHITLAM, MARSHALL and FINKELSTEIN JJ
DATE:	26 FEBRUARY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1. The appellant, a smoker, commenced a proceeding in this Court on 26 May 2003 in which he sought, among other relief, damages against the respondent, a cigarette manufacturer, and a declaration requiring it to pay his medical expenses arising from conditions suffered by him as a result of smoking cigarettes manufactured by the respondent. The case comes into the Federal Court because the appellant based his claim upon s 52 of the Trade Practices Act 1974 (Cth) (“the Act”). In substance, he alleged that the respondent failed to warn him of the risk of injury from smoking its cigarettes. He claims that he should have been given the warning in 1972 or 1973.

2. The respondent filed an application in which it sought, inter alia, that the proceeding be dismissed pursuant to O20 r2 of the rules of Court. It claimed that the proceeding did not disclose any cause of action under the Act and that it was frivolous and vexatious.

3. In a carefully considered judgment, the primary judge held that the proceeding was bound to fail. Her Honour specifically held at [29] that the claim of contravention of s52 “must be regarded as hopeless”. The primary judge also observed at [35] that:

   “…the amended statement of claim failed to allege any causal link between the conduct complained of and the damage Mr Lindsey allegedly suffered.”

4. Additionally, her Honour noted that the alleged acts and omissions of the respondent, the subject of the appellant’s complaints, occurred prior to the commencement of the Act. Further, the primary judge considered that the appellant ought not be permitted to re-plead. Her Honour said at [40]:

   “…it seems to me that [the appellant’s] claim is incapable of being turned into a tenable one.”

5. Although the primary judge’s judgment finally disposed of the proceeding, on the current state of…