Australia

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.