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.
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
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.
"A reading of the grounds of appeal supports the first aspect of the respondent’s argument. The grounds are indeed incomprehensible. They also are untenable in the sense that they do not identify any appellable error in the primary judge’s judgment. It must be remembered that O52 r18(2) places the onus on the appellant to establish why his appeal is competent. He has failed to do so. Accordingly, the second ground of the respondent’s motion has been made out. Additionally, the first ground is established given that there is no material before the Court, in accordance with O52 r4(2) of the rules of Court, which gives a reason for the granting of leave or sets out the nature of the case and the questions involved in any reasonably intelligible way."
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.
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.