Lindsey v Philip Morris Ltd

FEDERAL COURT OF AUSTRALIA

Lindsey v Philip Morris Ltd [2004] FCA 797

PRACTICE AND PROCEDURE – application for dismissal of proceeding as an abuse of process – applicant bringing substantially the same proceeding in the Federal Court and in Supreme Court of Victoria – respondent seeking order under O 21 r 2 – whether bringing one application in the Federal Court and appealing from an adverse judgment constitutes “habitually and persistently” instituting a proceeding

WORDS AND PHRASES – “habitually and consistently”

Federal Court Rules, O 20 r 2, O 21 r 2

Lindsey v Philip Morris Ltd [2004] FCAFC 40 cited

DAVID JAMES LINDSEY v PHILIP MORRIS LTD
NO V129 OF 2004

HEEREY J
16 JUNE 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V129 OF 2004

BETWEEN:	DAVID JAMES LINDSEY APPLICANT
AND:	PHILIP MORRIS LTD RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	16 JUNE 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. Pursuant to O 20 r 2 of the Federal Court Rules, the proceeding be dismissed.
2. The motion for security for costs filed on 25 May 2002, be adjourned sine die.
3. There be no order as to the costs of the motion for security for costs.
4. The applicant pay the respondent's costs of the proceeding, including the costs of the motion for summary judgment, notice of which was filed on 25 May 2004.
5. Leave to appeal is refused.

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	V129 OF 2004

BETWEEN:	DAVID JAMES LINDSEY APPLICANT
AND:	PHILIP MORRIS LTD RESPONDENT

JUDGE:	HEEREY J
DATE:	16 JUNE 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant commenced this proceeding on 12 February 2004 and filed a statement of claim on that day.  On 15 June 2004 he filed a fresh statement of claim, without leave, as he was entitled to do under the Federal Court Rules.

2. On 25 March 2004 the respondent filed two notices of motion.  The first sought orders pursuant to O 20 r 2(1)(a), (b) and (c), or the Court’s implied powers, that the proceeding be dismissed or permanently stayed on the grounds that no reasonable cause of action is disclosed, and that it is frivolous or vexatious or an abuse of the process of the court. 

3. The motion also sought an order pursuant to O 21 r 2 that the applicant shall not, without leave of the court, institute any proceeding against the respondent in the court and that the proceedings shall not be continued by the applicant without leave of the court.

4. The second notice of motion seeks, pursuant to O 28 r 3, an order that the proceeding be stayed pending the payment into the court by the applicant of the sum of $45,000 as security for payment of the respondent’s costs and that in the event the applicant fails to pay that sum by a date and time to be…