Lindsey v. Philip Morris Limited

This was an application to dismiss an appeal from the earlier decision of a single judge of the Federal Court which had dismissed the plaintiff's claim (see Lindsey v Philip Morris Limited [2004] FCA 9). Mr Lindsey, a smoker, had sued 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 in contravention of s52 of the Trade Practices Act, causing him loss and damage. Mr Lindsey, who represented himself, had brought several claims in different jurisdictions against a number of different defendants, all unsuccessful. He had previously been declared a vexatious litigant by the Supreme Court of Victoria.

In the Court below, Judge Kenny had found that his pleading against Philip Morris was so flawed that it was incapable of being turned into a tenable one. Judge Kenny had 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, Judge Kenny had noted that Mr Lindsay complained about conduct in 1972 and 1973, prior to the Trade Practices Act even commencing.

Mr Lindsey had filed an appeal to the Full Court without seeking leave to do so, contrary to the Federal Court Rules. Philip Morris applied for his appeal to be dismissed on that basis, and on the further basis that the notice of appeal was largely incomprehensible and was untenable. The Full Court unanimously agreed with Philip Morris and dismissed the appeal as incompetent.


Lindsey v Philip Morris Limited [2004] FCAFC 40

  • Australia
  • Feb 26, 2004
  • Federal Court of Australia, Full Court


Plaintiff David James Lindsay (now known as David James Sjostrom-Clemens-Lindsey)

Defendant Philip Morris Limited

Legislation Cited

Federal Court of Australia Act 1976

Trade Practices Act 1974

Related Documents

Type of Litigation

Tobacco Control Topics


Substantive Issues

Type of Tobacco Product