Attorney-General for the State of Victoria v. Clemens (No 3)
Mr Clemens (formerly, Mr Lindsay) was declared a vexatious litigant in July 1998. He was therefore prohibited from commencing proceedings in any Victorian Court or Tribunal without leave. Mr Clemens, who represented himself, had brought several claims in different jurisdictions against a number of different defendants, all unsuccessful (see e.g: Lindsey v Philip Morris Limited [2004] FCAFC 40). He sought leave in this case to pursue a negligence claim against the Government of Victoria. He alleged that the Government of Victoria owed him a duty of care to enact legislation which would prevent foreseeable injury to the community as a result of cigarette smoking.
Mr Clemens had previously made a similar claim against the Department of Education and Early Childhood Development, which was rejected by Hansen J. In this case, Robson J found that the statement of claim was substantially similar. Robson J was not satisfied that the proposed proceeding would not be an abuse of process and therefore refused Mr Clemens's application.
Attorney-General for the State of Victoria v Clemens (No 3) [2009] VSC 297 (24 July 2009)
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Mr Clemens says that on or around 20 August 1955, the State Government knew, amongst other things, that smoking cigarettes caused cancer, that cigarette smoking was on the rise, that cigarette smoking produced 7 per cent more deaths per year than any other cause, that cigarette smoke contained components which caused cancer, that incidence of lung cancer caused by cigarette smoking would rise into the
future over a twenty year period and that there was a real risk of ‘the young’ smoking cigarettes and to address the problem of cigarette smoking, these facts needed to be made known to the young. Mr Clemens says that from 1958 to 1972, he did not know of these facts and in late 1971 or early 1972, he started smoking cigarettes. Mr Clemens says that the State Government was careless and did not take steps to
eliminate the real risk of the foreseeable damage as a result of the young smoking cigarettes, for example, by enacting legislation to warn and/or educate the Victorian community of the facts which needed to be known about cigarette smoking, or by removing cigarettes from the Victorian community until the components in cigarette smoke which caused lung cancer were removed. Mr Clemens says that as a result of the State Government’s negligence, he suffered injury. He says he suffers from emphysema, pulmonary disease, small airways disease, smokers’ bronchitis and elevated carbon monoxide levels."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
Mr Clemens (formerly, Mr Lindsay) was declared a vexatious litigant in July 1998. He was therefore prohibited from commencing proceedings in any Victorian Court or Tribunal without leave. Mr Clemens, who represented himself, had brought several claims in different jurisdictions against a number of different defendants, all unsuccessful (see e.g: Lindsey v Philip Morris Limited [2004] FCAFC 40). He sought leave in this case to pursue a negligence claim against the Government of Victoria. He alleged that the Government of Victoria owed him a duty of care to enact legislation which would prevent foreseeable injury to the community as a result of cigarette smoking.
Mr Clemens had previously made a similar claim against the Department of Education and Early Childhood Development, which was rejected by Hansen J. In this case, Robson J found that the statement of claim was substantially similar. Robson J was not satisfied that the proposed proceeding would not be an abuse of process and therefore refused Mr Clemens's application.