Clemens v. Attorney-General for the State of Victoria
Mr Clemens (formerly, Mr Lindsay) was declared a vexatious litigant in July 1998. As a result he was 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).
In this case Mr Clemens sought leave to bring a proceeding against Philip Morris Limited (PML) for putting poisons into its products "deliberately! with intent". In an earlier proceeding, Mr Clemens had sought damages from PML for negligence, namely its failure to warn him of the harmful nature of its cigarettes. In May 2007, a jury in the County Court found that there had been no negligence that was a cause of injury to Mr Clemens, and the judge accordingly entered judgment against him. The Court of Appeal refused to give Mr Clemens leave to appeal from that decision: Clemens v Philip Morris Ltd [2008] VSCA 48.
In this case, Kyrou J rejected Mr Clemens's application to bring a further proceeding against PML on several bases, including that the proposed proceeding was an abuse of process and was bound to fail.
Clemens v Attorney-General for the State of Victoria [2009] VSC 139 (9 April 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
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"The application for leave that is before me is in substance the same as the application that was before Habersberger J and Mr Clemens’ submissions are largely directed at establishing that his Honour’s March 2009 decision was wrong because it was based on a misunderstanding of the legal principles his Honour relied on. The appropriate avenue to challenge Habersberger J’s decision is to obtain leave to appeal to the Court of Appeal rather than to seek to reagitate the issues before another judge of the Trial Division of this Court. As Mr Clemens has chosen not to seek leave to appeal to the Court of Appeal, insofar as his application deals with the tort of the intentional infliction of physical harm other than trespass to the person which has already been considered by Habersberger J, the application itself is an abuse of process and I refuse to entertain it. Although, in taking this course, it is not necessary for me to express a view about the correctness of the March 2009 decision, I note that I am in complete agreement with that decision."
"Nevertheless, the very purpose of requiring a person who has been declared a vexatious litigant to obtain leave before commencing a new proceeding is to stop the proposed defendant or defendants from being unfairly vexed or oppressed by continually being forced to spend the time and to incur the costs of defending unjustified proceedings being brought against them. Here, PML has defended a proceeding all the way to verdict and won. Given that the statement of claim in that proceeding was Mr Clemens’ ninth attempt to obtain leave, it could hardly be said that, despite his lack of legal training, he had not thought long and hard about how he might plead his complaint against PML. He was apparently quite content to proceed to trial on the basis of his first claim. But when he lost, he scrambled around and came up with yet another way of attempting to recover damages from PML. It should not be forgotten that apart from unsuccessfully suing PML in negligence, Mr Clemens had also tried unsuccessfully to bring proceedings under the TPA against PML in the Federal Court."
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. As a result he was 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).
In this case Mr Clemens sought leave to bring a proceeding against Philip Morris Limited (PML) for putting poisons into its products "deliberately! with intent". In an earlier proceeding, Mr Clemens had sought damages from PML for negligence, namely its failure to warn him of the harmful nature of its cigarettes. In May 2007, a jury in the County Court found that there had been no negligence that was a cause of injury to Mr Clemens, and the judge accordingly entered judgment against him. The Court of Appeal refused to give Mr Clemens leave to appeal from that decision: Clemens v Philip Morris Ltd [2008] VSCA 48.
In this case, Kyrou J rejected Mr Clemens's application to bring a further proceeding against PML on several bases, including that the proposed proceeding was an abuse of process and was bound to fail.