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Phillip Morris Ltd v Attorney-General (Vic)

Phillip Morris Ltd v Attorney-General (Vic)

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7476 of 1997

PHILLIP MORRIS LIMITED	Appellant
PHILLIP MORRIS LIMITED	v.
THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA
THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	First Respondent
and
DAVID JAMES LINDSEY	Second Respondent

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JUDGES:	MAXWELL, P., ORMISTON and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 September 2005
DATE OF JUDGMENT:	21 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 21

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Practice and Procedure – Vexatious litigant – Application for leave to commence legal proceedings – Whether court could be satisfied that proposed proceeding not an abuse of process – Supreme Court Act s. 21(4) – Successful application for leave following eight unsuccessful applications to different judges – Whether making of repeated applications was vexatious or constituted “judge shopping” – Whether applicant’s failure to pay costs of previous proceeding against proposed defendant required refusal of leave – Whether “outstanding costs principle” applicable – No error shown – Appeal from grant of leave dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.R. Sackar, QC with Mr S.A. O’Meara	Allens Arthur Robinson
For the First Respondent	No appearance
For the Second Respondent	Mr Lindsey in person

MAXWELL, P.:

On 16 July 1998, the second respondent (“Mr Lindsey”) was declared a vexatious litigant on the application of the Attorney-General for Victoria. The Attorney-General is the first respondent to the present appeal, but has taken no part in the proceedings, either at first instance or in this Court.

Kellam, J., who made the declaration, was satisfied that a number of proceedings which Mr Lindsey had initiated –

“were vexatious proceedings in the sense that they disclosed no reasonable cause of action or were or are oppressive, embarrassing and an abuse of the process of the Court... Each of [the relevant files] contain pleadings which were or are oppressive, embarrassing and were or are so untenable as to have no prospect of being successfully established at trial.”

His Honour was further satisfied that each of those proceedings had been brought without any reasonable grounds and had been instituted both “habitually and persistently”, within the meaning of s.21(2)(a) and (b) of the Supreme Court Act 1986 (“the Act”).

Having declared Mr Lindsey to be a vexatious litigant pursuant to s.21(2) of the Act, his Honour further ordered that Mr Lindsey –

“must not, without the leave of this Honourable 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 Act.

On 7 January 2005, Mr Lindsey made application to the Court pursuant to s.21(3) of the Act for leave to commence a proceeding against the appellant (“Phillip Morris”), claiming damages for injuries suffered as a result of smoking cigarettes manufactured by it. The application came on before the Judge in the Practice Court on 12 January 2005. The application was ex parte. The Judge granted Mr Lindsey leave to bring a proceeding in the County Court.

As Mr Lindsey explained in the affidavit filed in support of his application, he…

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.

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Details

Case: [2006] VSCA 21
Decision Date: 21 February 2006

CaseChat Overview and Summary

Phillip Morris Ltd, an applicant, sought leave to commence legal proceedings against the Attorney-General of Victoria. The dispute centred on the applicant's attempts to initiate litigation against the Attorney-General despite a history of unsuccessful applications for leave to sue. This case reached the court with the applicant having already made eight unsuccessful applications to different judges, raising questions about the vexatious nature of these applications and whether they constituted "judge shopping." The court was also tasked with determining whether the applicant's failure to pay costs from a previous proceeding against the proposed defendant warranted refusal of leave and if the so-called "outstanding costs principle" applied.

The court examined the criteria under section 21(4) of the Supreme Court Act to determine whether the proposed proceeding was an abuse of process. The repeated applications were scrutinised to assess whether they were vexatious or indicative of judge shopping. Additionally, the court considered whether the applicant's non-payment of costs from a previous proceeding should preclude them from obtaining leave. The "outstanding costs principle" was also reviewed to see if it was applicable in this context.

The court concluded that no error was demonstrated in the decision to grant leave to the applicant. The repeated applications were not deemed to be vexatious or indicative of judge shopping, as the applicant had shown a genuine intent to pursue the case. The court found that the outstanding costs principle did not apply, and therefore, the applicant's failure to pay costs from a previous proceeding was not a valid reason to deny leave. The appeal against the grant of leave was dismissed, allowing the applicant to proceed with their intended litigation.

As a result of the court's decision, Phillip Morris Ltd was granted leave to commence legal proceedings against the Attorney-General of Victoria. The dismissal of the appeal meant that the lower court's decision stood, permitting the applicant to move forward with their case. This outcome provided clarity on the criteria for granting leave in cases involving repeated applications and the applicability of the "outstanding costs principle."

Orders