Attorney-General for the State of Victoria v. Clemens
David Clemens (formerly Lindsey) had previously been declared a vexatious litigant, which meant that he was barred from bringing proceedings in Victoria without leave. Mr Clemens had brought numerous proceedings against various defendants seeking damages for personal injury from smoking cigarettes (among other things).
In a previous decision, Hansen J granted leave for Mr Clemens to bring this proceeding against Philip Morris (Australia) Limited ("PMAL"). Mr Clemens had previously lost a trial by jury against Philip Morris Limited (PML) alleging that it had failed to warn him of the harms of smoking. This case was brought against a different corporate entity - PMAL - and alleged negligence based on its failure to remove nicotine from its cigarettes and for including toxic ingredients.
In this decision, Hansen J allowed PMAL's application to set aside the earlier decision allowing Mr Clemens to bring the claim, on the basis that it was foredoomed to fail and would be an abuse of process. Hansen J found that PMAL was not the relevant manufacturer of cigarettes during the period of time that Mr Clemens alleged it had been negligent.
Attorney-General for the State of Victoria [2008] VSC 370 (23 September 2008)
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.
"Nevertheless Mr Clemens submitted that when he commenced to smoke Marlboro cigarettes – in late 1971 or early 1972 – he may have been smoking cigarettes manufactured by PMAL. This submission amounted to an unsubstantiated assertion that when PMAL finished manufacturing, importing or distributing Marlboro cigarettes there was a stockpile remaining of such proportion that they were still being sold to consumers in late 1971 or early 1972. But the submission went further than this, as it had to. It was to be inferred that the Marlboro cigarettes consumed by Mr Clemens included cigarettes manufactured by PMAL. The difficulty with the submission was that it lacked evidentiary support. There was no evidence as to the quantity of Marlboro cigarettes manufactured or imported by PMAL and on hand at the end of 30 June 1967 and acquired by PML pursuant to the sale agreement. Nor was there any evidence as to what happened with any such stock, in particular as to whether it was sold in Victoria or elsewhere and, if in Victoria, where and for how long. It might be surmised that in the way of things, any such stock would not still have been on retail shelves in late 1971 or early 1972 but I do not know and cannot speculate one way or the other. Even if it be assumed that some quantity of such stock might have been on retail shelves in a business in Melbourne from which Mr Clemens purchased Marlboro cigarettes there is no evidence that he purchased an item of such stock or from which it might be inferred that he purchased such stock. Then again there is the further issue as to the likely quantity of such stock that he might have purchased, which is important for it is related to the causal question whether the smoking of that quantity of Marlboro manufactured or imported by PMAL was a cause of the damage or injury claimed in the proceeding."
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.
David Clemens (formerly Lindsey) had previously been declared a vexatious litigant, which meant that he was barred from bringing proceedings in Victoria without leave. Mr Clemens had brought numerous proceedings against various defendants seeking damages for personal injury from smoking cigarettes (among other things).
In a previous decision, Hansen J granted leave for Mr Clemens to bring this proceeding against Philip Morris (Australia) Limited ("PMAL"). Mr Clemens had previously lost a trial by jury against Philip Morris Limited (PML) alleging that it had failed to warn him of the harms of smoking. This case was brought against a different corporate entity - PMAL - and alleged negligence based on its failure to remove nicotine from its cigarettes and for including toxic ingredients.
In this decision, Hansen J allowed PMAL's application to set aside the earlier decision allowing Mr Clemens to bring the claim, on the basis that it was foredoomed to fail and would be an abuse of process. Hansen J found that PMAL was not the relevant manufacturer of cigarettes during the period of time that Mr Clemens alleged it had been negligent.