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) based on the common law offence of causing grievous bodily harm (or serious injury) to him by allegedly mixing toxic and carcinogenic chemicals into its tobacco products knowing that they were dangerous. 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: see Clemens v Philip Morris Ltd [2008] VSCA 48.

In this case, Habersberger J rejected Mr Clemens's application to bring a further proceeding against PML on the basis that this cause of action could and should have been pleaded against PML in the earlier proceeding.