Lindsey v. Philip Morris Limited

The plaintiff was an unrepresented litigant, allegedly suffering from lung disease. He brought this claim against Philip Morris alleging that it failed to warn him of the risks inherent in smoking its cigarettes and thereby engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s52 of the Trade Practices Act, causing him loss and damage. In this case the defendant sought summary dismissal of the claim against it on the basis that the plaintiff's pleading disclosed no cause of action, was frivolous and vexatious and was an abuse of process.

Mr Lindsay, the plaintiff, had a long history of bringing legal proceedings against several different defendants, including Philip Morris. He had brought several claims similar to this one against Philip Morris in the Supreme Court of Victoria, all of which had been struck out (see: Re Sjostrom-Clemens-Lindsay [2003] VSC 94; Sjostrom-Clemens-Lindsay v Attorney General for the State of Victoria [2003] VSC 132; Attorney-General v Lindsay [2003] VSC 176). The Supreme Court of Victoria had earlier declared him to be a vexatious litigant, with the result that he was unable to institute proceedings in the state of Victoria without leave of the Court.

In this case, Judge Kenny agreed with the defendant that Mr Lindsay's pleading was so flawed that it was incapable of being turned into a tenable one. Judge Kenny placed particular emphasis on the mandatory health warnings required by State and Federal governments which, in his view, rendered Mr Lindsay's claim of a failure to warn hopeless. Further, Mr Lindsay complained about conduct in 1972 and 1973, prior to the Trade Practices Act commencing. Further still, Mr Lindsay failed to allege any causal link between the conduct complained of and the damage he allegedly suffered. Judge Kenny therefore summarily dismissed Mr Lindsay's claim.

Mr Lindsay unsuccessfully appealed this decision to the Full Court of the Federal Court: Lindsey v Philip Morris Limited [2004] FCAFC 40.


Lindsey v Philip Morris Limited [2004] FCA 9 (21 January 2004)

  • Australia
  • Jan 21, 2004
  • Federal Court of Australia


Plaintiff David James Lindsey

Defendant Philip Morris Limited

Legislation Cited

Trade Practices Act 1974

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product