Applicant v Respondent

3 Section 21(4) of the Supreme Court Act 1986 (Vic) provides that the Court must not give a vexatious litigant leave to commence any legal proceeding "unless the Court ... is satisfied that the proceedings are not or will not be an abuse of the process of the Court, inferior court or tribunal".

4 For the reasons set out below, I have decided to refuse Mr Clemens' application.

5 Mr Clemens' current application (which is detailed in paragraphs 14 to 18 of these reasons) must be considered in the context of previous litigation between him and PML, and previous applications that he has made for leave to commence proceedings against PML. In considering Mr Clemens' application, I have had regard to the following decisions: Attorney-General v[2]Lindsey (16 July 1998),2 Phillip Morris Ltd v Attorney-Gen[3]ral (21 February 2006),3 Clemens v Attorney-General (17 November 2008) ("Novembe[4] 2008 decision"),4 Attorney-General v Clemens (4 December 2008) ("Decemb[5]r 2008 decision")5 and Clemens v Attorney-General (20 March 2009) ("March 2009 decision") (collectively &[6]Decisions").6 I have also considered all of the material that Mr Clemens has provided to the Court in support of his application, being an affidavit sworn by him on 30 March 2009 and its exhibits, and the brief oral submissions made by Mr Clemens before me on 8 April 2009.

6 As is apparent from the Decisions, on 12 January 2005, Gillard J gave Mr Clemens (then known as David Lindsey) leave to commence a proceeding in the County Court against PML.[7] In that proceeding, Mr Clemens sought damages for personal injuries suffered by him as a result of PML's negligence, namely its failure to warn him of the harmful nature of its cigarettes and the dangers of smoking them ("negligence proceeding"). 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 Mr Clemens.[8]

7 Insofar as it is not set out below, the history of Mr Clemens' subsequent unsuccessful attempts to commence further proceedings involving PML is set out in the Decisions. For the purposes of this judgment, it is only necessary to discuss the November 2008, December 2008 and March 2009 decisions. Those decisions disclose that the following underlying factual allegations, which I will refer to as the "primary facts", have been made by Mr Clemens in the negligence proceeding and in support of his subsequent applications for leave to commence further proceedings against PML:

(b) Mr Clemens began smoking PML's cigarettes in late 1971 and became addicted to nicotine;

(c) PML's cigarettes contain various substances and chemicals which are harmful to humans;

(d) PML has known at relevant times that its cigarettes were harmful; and

(e) as a result of smoking PML's cigarettes, Mr Clemens suffered personal injury by contracting pulmonary disease, emphysema and bronchitis on 11 October 2002.

8 On 17 November 2008, Mr Clemens applied to Harper J in the Practice Court for leave to commence another proceeding in the County Court against PML based on PML's alleged negligence in failing to extract the nicotine and the toxic and carcinogenic chemicals from its cigarettes, rather than on a failure to warn against the dangers of smoking cigarettes. Harper J refused leave for the following reasons:

(a) The cause of action Mr Clemens wished to pursue was the same as the cause of action in the negligence proceeding which was rejected by the jury in May 2007, namely negligence. In the proposed proceeding, Mr Clemens would seek damages for personal injury (pulmonary disease and emphysema) allegedly suffered by him as a result of smoking PML's cigarettes which contained harmful chemicals. The fact that the alleged negligence would be different did not mean that a different cause of action would be pursued.

(b) In finding against Mr Clemens in May 2007 in the negligence proceeding, the jury must have concluded either that PML's cigarettes were not harmful or, more likely, that the cigarettes were harmful but there was no negligence because PML did not fail to warn. In either case, the jury's decision is binding on Mr Clemens as between him and PML.

(c) As a jury has already found that, although PML's cigarettes are harmful, there was no negligence on the part of PML that was a cause of injury to Mr Clemens, the principles of res judicata and issue estoppel prevent him from bringing fresh proceedings based on the same cause of action.

(d) It would be an abuse of process if Mr Clemens were permitted to relitigate the question of whether his personal injury was caused by PML's negligence.

9 On 4 December 2008, Mr Clemens applied to Byrne J in the Practice Court for leave to commence another proceeding in the County Court against PML based on PML's alleged recklessness in mixing harmful chemicals into its cigarettes and disregarding the possible consequences of its conduct. Byrne J refused leave for the following reasons:

(a) Although Mr Clemens sought to issue a proposed proceeding in the criminal division of the County Court, it had the hallmarks of a civil claim.

(b) The thrust of the proposed claim was that Mr Clemens suffered personal injury in October 2002 as a consequence of smoking PML's cigarettes and that the injury was caused by PML's recklessness in mixing harmful chemicals into its cigarettes and disregarding the possible consequences of its conduct.

(c) Recklessness is not a common law offence. Insofar as recklessness could give rise to a civil proceeding, the nearest one would be a claim in negligence.

(d) The proposed claim was not, in substance, any different from the proposed claim in negligence in respect of which Harper J had already refused leave,[9] and did not have any prospect of success.

10 In February 2009, Mr Clemens applied to Habersberger J in the Practice Court for leave to commence another proceeding in the County Court against PML. Initially, Mr Clemens sought leave to issue an originating motion against PML under "Section 5 of the Crimes Act (Vic) 1958" seeking damages on the basis that on 1 July 1967 PML, as manufacturer of cigarettes, mixed toxic and carcinogenic chemicals into its cigarettes making them dangerous and that on 11 October 2002, Mr Clemens suffered grievous bodily harm. In 1971/72, Division 1(5) of Part 1 of the Crimes Act dealt with "Acts Causing Danger to Life or Bodily Harm" including s 17 which dealt in part with the offence of unlawfully and maliciously causing any grievous bodily harm to any person. In 2002, Division 1(4) of Part 1 of the Crimes Act dealt with "Offences against the person", including ss 16, 17 and 18, which are set out in paragraph 16 of these reasons. After Habersberger J pointed out obvious deficiencies in the pleading, Mr Clemens submitted a proposed statement of claim. Habersbe[10]er J said:10

Doing the best I can to make some sense of this claim, it seemed to me that Mr Clemens' new cause of action, which was based on the alleged common law offence of causing grievous bodily harm (or serious injury) to Mr Clemens by mixing toxic and carcinogenic chemicals into its tobacco products knowing that they were dangerous, was arguably similar to the tort of the intentional infliction of physical harm other than trespass to the person.

11 Habersberger J compared the factual allegations in the proposed statement of claim and the statement of claim in the negligence proceeding and concluded that they relied on "the same set of alleged facts". His Honour said that the difference between the two claims is that whereas the cause of action in the negligence proceeding was PML's negligent failure to warn Mr Clemens of the inherent dangers associated with the use of its cigarettes, in the proposed claim the cause of action against PML was based on the alleged common law offence of causing grievous bodily harm to Mr Clemens by mixing toxic and carcinogenic chemicals into its cigarettes knowing they were dangerous.

12 After considering the nature of the tort of the intentional infliction of physical harm other than trespass to the person, Habersberger J held that, even if a cause of action such as that which appeared from Mr Clemens' proposed statement of claim were available to him, it would have been an abuse of process to give him leave to bring such a proceeding against PML, as the cause of action "could and should have been pleaded in the [negligence] proceeding".[11] This is because the subject matters of the two claims are closely related.[12] His Honour said that this was so "however [the cause of action sought to be pleaded in the proposed claim] be described and framed".[13] He referred to the rule in Henderson v Henderson, namely that the plea of res judicata may operate to bar a party from raising a point which could and should have been but was not brought forward in previous litigation, and to the controversy about the scope of that rule,[14] and concluded that, in the circumstances, "[w]hatever be the current status of the rule in Henderson ... Mr Clemens faces an insurmountable obstacle in seeking to persuade me that his proposed claim is not an abuse of process".[15]

13 For completeness, I note that in May 2003 and February 2004, Mr Clemens commenced Federal Court proceedings under the Trade Practices Act 1974 (Cth) against PML seeking damages for injuries allegedly suffered by him in consequence of smoking cigarettes manufactured by PML and that those proceedings were dismissed.[16]

14 It is against this background that Mr Clemens' current application for leave to commence a new proceeding in the County Court must be considered. This application came before me in the Practice Court on an ex parte basis on 8 April 2009, and is supported only by Mr Clemens' affidavit of 30 March 2009.[17] That affidavit states:

(a) In October 2002, Mr Clemens was diagnosed with pulmonary disease, emphysema and smoker's bronchitis.

(b) The above injury resulted from use of PML's tobacco products.

(c) PML's tobacco products contain over 200 poisons and are harmful.

(d) PML put the 200 poisons into its products "deliberately!, with intent".

(e) PML knew the poisons in its products could cause harm to another person indirectly.

(g) Mr Clemens has a right to freedom from incurring harm.

(i) "acted in a wrongful way which it knew to be unjustifiable intentionally causing harm!, to another person"; and

(ii) violated Mr Clemens' right to freedom from harm.

(i) The act complained of by Mr Clemens relating to PML's conduct is: "'Deliberately and intentionally putting a poison or poisons into its products causing physical injury to another without jurisdiction'!, or lawful excuse'!, violating the plaintiffs freedom from harm!".

15 Mr Clemens' affidavit exhibits, among other things, the form of Mr Clemens' proposed originating motion in the County Court. The critical part of the proposed form of originating motion is as follows:

1. THE ACTS UNDER WHICH THE PLAINTIFF CLAIMS ARE MADE.

i. Section 27B(2)(e) of the Limitations of Action Act (Vic) 1958.

1. Division 1(4) of Part 1 of the Crimes Act 1958 (Vic), 'OFFENCES AGAINST THE PERSON', (including ss. 16, 17 and 18.).

2. THE PLAINTIFF SEEKS THE FOLLOWING RELIEF OR REMEDY.

i. Punitive Damages.

3. QUESTIONS TO THE COURT TO BE ANSWERED.

i. How does the Court find the Defendant?

GUILTY or NOT GUILTY.

1. If GUILTY, what amount of Punitive Damages does the Court award the Plaintiff?

16 The provisions of the Crimes Act mentioned in the proposed originating motion are as follows:[18]

16 Causing serious injury intentionally

A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence.

Penalty: Level 3 imprisonment (20 years maximum).

17 Causing serious injury recklessly

A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence.

Penalty: Level 4 imprisonment (15 years maximum).

18 Causing injury intentionally or recklessly

A person who, without lawful excuse, intentionally or recklessly causes injury to another person is guilty of an indictable offence.

Penalty: If the injury was caused intentionally - level 5 imprisonment (10 years maximum);

If the injury was caused recklessly - level 6 imprisonment (5 years maximum).

17 Mr Clemens' affidavit refers variously to the proposed proceeding being a "criminal law offence proceeding" and a "Common Law Offence Proceeding". During his brief oral submissions on 8 April 2009, Mr Clemens informed me that the reference to a "Common Law Offence Proceeding" is erroneous and that he proposes to rely only upon the statutory offences referred to in his proposed originating motion, being those in div 1(4) of Part 1 of the Crimes Act. Although that proposed originating motion is expressed to be "including ss 16, 17 and 18" of that Act, Mr Clemens informed me during his oral submissions that the proceeding that he proposes to commence is in fact limited to those three provisions and does not include any offence set out in any other provision of div 1(4) of Part 1 of the Crimes Act.

18 Before me on 8 April 2009, Mr Clemens confirmed that his proposed proceeding would also encompass an alleged commission of the tort of the intentional infliction of physical harm other than trespass to the person.

19 To the extent that his proposed proceeding would involve ss 16, 17 and 18 of the Crimes Act, the basis on which Mr Clemens proposes to seek "Punitive Damages" is unclear. To the extent that the proceeding would claim a commission of the tort of the intentional infliction of physical harm other than trespass to the person, then, insofar as a tort were pleaded, it is possible that punitive (or "exemplary") damages would be available as a remedy.

20 Mr Clemens states in his affidavit that there is a difference between the tort of the intentional infliction of physical harm other than trespass to the person, which was considered by Habersberger J, and his "new cause of action ... based on causing grievous bodily harm". He states that PML committed the "offence against the person" on either 1 July 1967 or 11 October 2002 and that the tort occurred on 11 October 2002 when he suffered the personal injury.

21 Mr Clemens states in his affidavit that while he is now precluded by the principle of res judicata and the principle in Henderson v Henderson[19] from bringing a cause of action in negligence against PML, those principles do not preclude him from alleging criminality against PML and, in any event, "it is highly inappropriate to consider allegations in Criminality as Negligence [and] it is highly impracticable and logically impossible!, to hear both together".

22 Mr Clemens' affidavit contains legal submissions, some of which are based on Halsbury's Laws of England. He submits it is not an abuse of process to allege facts in a subsequent proceeding as long as they are consistent with the facts found in a previous proceeding and that it is up to the judge hearing the subsequent proceeding to determine whether there is an abuse of process (with the onus being on the proposed defendant to prove an abuse of process) rather than the judge hearing an application for leave under s 21(4) of the Supreme Court Act.

23 Mr Clemens also submits that issue estoppel only applies where an issue raised in both proceedings is the same and the parties to the judicial decision are the same as the parties to the subsequent proceeding in which the estoppel is raised, with the onus being on the party raising the estoppel to prove it. Once again he submits that an issue estoppel should be raised by the defendant in the proposed proceeding rather than be determined by the judge hearing an application for leave under s 21(4) of the Supreme Court Act.

24 Mr Clemens also refers to comments made in Port of Melbourne Authority v Anshun Pty Ltd, where Gibbs CJ, Mason and Aickin JJ referred to a statement that the general rule is that a defendant in a proceeding has an election as to whether to raise a claim available to it by way of set-off, counter-claim or cross-petition in that proceeding, and that a prior action in which such a claim might have been asserted by a defendant does not bar a subsequent independent action based on that claim.[20] Mr Clemens submits that, as a matter of natural justice and good administration of justice, the same principle ought to apply to a plaintiff.

25 The Court's power to give leave to commence a proceeding under s 21 of the Supreme Court Act is discretionary, but the power is not available unless the Court is satisfied that the proposed proceeding would not be an abuse of process.[21] The onus lies on the applicant, Mr Clemens, to establish this.[22]

26 The concept of "abuse of process" is not confined to fixed categories.[23] However, the courts have identified some relevant principles, including in the context of applications such as that in the present matter. It will be an abuse of process if the proceeding can be clearly seen to be foredoomed to fail, or if the continuance of the proceeding would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.[24] The Court must assess the form, content and likely conduct of the proposed proceeding, having regard to the relevant indicia of abuse of process.[25]

27 There is significant overlap between the facts Mr Clemens seeks to rely on in his new cause of action, as set out in paragraph 14 of these reasons, and the facts he relied on in the negligence proceeding, as set out in paragraph 7 of these reasons. Additionally, the facts that are new have already been canvassed in the applications for leave which were rejected in the November 2008 decision, the December 2008 decision and the March 2009 decision.

28 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.

29 Once the tort of the intentional infliction of physical harm other than trespass to the person is put to one side, what remains of Mr Clemens' proposed proceeding is an allegation that PML committed the offences set out in ss 16, 17 and 18 of the Crimes Act and that, as a result, he claims punitive damages. However, PML has not been found guilty of those offences and assuming they are otherwise applicable, the provisions in div 2 of Part 4 of the Sentencing Act 1991 (Vic), which provide for compensation orders in favour of certain persons who suffer particular injuries as a result of a crime, are not enlivened.

30 Although Mr Clemens' proposed proceeding purports to be of a criminal nature, it does not constitute a criminal charge against PML. Even if it did, I would not give him leave to bring such charges in their current form as they are foredoomed to fail and therefore would be an abuse of process. This is because, on the basis of the material Mr Clemens has submitted to the Court, the proposed charges neither particularise the elements of the offences nor identify any admissible evidence of their commission. In addition, even if it is assumed that the proposed charges are not an abuse of process, I would, in the exercise of my discretion, refuse leave because it would bring the administration of justice into disrepute for Mr Clemens, as a vexatious litigant who has pursued a lengthy but unsuccessful campaign in the civil courts to obtain compensation from PML, to prosecute PML for serious criminal offences for the purposes of obtaining personal compensation.

31 As Mr Clemens' proposed proceeding is not a criminal proceeding, I have sought, unsuccessfully, to identify from the material he has submitted to the Court any civil cause of action apart from negligence and the tort of the intentional infliction of physical harm other than trespass. As no known cause of action has been identified, the proposed proceeding is an abuse of process because it is foredoomed to fail.

32 I have considered Mr Clemens' legal submissions in reaching the above conclusions. Those submissions confuse how PML might rely on the principle of res judicata, the principle in Henderson v Henderson[26] and the principle of issue estoppel in a new proceeding by Mr Clemens against PML, with how those principles are relevant to this Court's decision on whether the proposed new proceeding would be an abuse of process within the meaning of s 21(4) of the Supreme Court Act. When the Court is exercising its jurisdiction under s 21(4), it applies the principles discussed by the Court of Appeal in Phillip Morris Ltd v Attorney-General[27] which I have summarised briefly in paragraphs 25 and 26 of these reasons. Based on the material submitted by the applicant for leave to commence a proceeding, the Court forms an opinion on whether the proposed proceeding is an abuse of process. The Court has regard to relevant legal principles, including those referred to at the commencement of this paragraph, in deciding whether the proceeding is an abuse of process on the ground that it is foredoomed to fail or on some other ground.

33 As for Mr Clemens' submission which is summarised in paragraph 24 of these reasons, as a single judge, I am unable to alter the law as proposed by Mr Clemens.

34 In summary, applying the relevant legal principles, I have decided to refuse Mr Clemens' application for leave to commence the proceeding set out in his draft originating motion for the following reasons:

(a) insofar as the originating motion relies on the tort of the intentional infliction of physical harm other than trespass to the person, the application itself is an abuse of process because that issue has already been dealt with by Habersberger J and the application impermissibly seeks to impugn his Honour's decision other than by way of appeal to the Court of Appeal;

(b) insofar as it purports to constitute criminal charges, the proposed proceeding is an abuse of process because it is foredoomed to fail and I would, in any event, exercise my discretion against granting leave; and

(c) insofar as it purports to be a civil cause of action apart from negligence (which has already been determined in the negligence proceeding) and the tort of the intentional infliction of physical harm other than trespass, as no known cause of action has been identified, the proposed proceeding is an abuse of process because it is foredoomed to fail.

35 Mr Clemens has already had a jury trial in relation to the negligence proceeding and failed. Since then, he has unsuccessfully applied on a number of occasions for leave to commence various proceedings against PML in relation to essentially the same facts. In all the circumstances, including the matters discussed in paragraphs 5 to 12 of these reasons, it is difficult to envisage a situation in which it would be appropriate to give Mr Clemens leave to commence a civil proceeding against PML based on the primary facts. Accordingly, I would encourage Mr Clemens not to make any further applications for leave to bring proceedings against PML based on the primary facts without first obtaining legal advice.

[1] A-G v Lindsey (Unreported, Supreme Court of Victoria, Kellam J, 16 July 1998).

[2] (Unreported, Supreme Court of Victoria, Kellam J, 16 July 1998).

[3] [2006] VSCA 21; (2006) 14 VR 538 (Court of Appeal).

[4] [2008] VSC 505 (Harper J).

[5] [2008] VSC 564 (Byrne J).

[6] [2009] VSC 28 (Habersberger J).

[7] Gillard J subsequently refused an application by PML to vacate his order granting leave: A-G v Lindsey [2005] VSC 53. An appeal from that decision by PML was dismissed by the Court of Appeal: Phillip Morris Ltd v A-G [2006] VSCA 21; (2006) 14 VR 538. This followed eight previous unsuccessful applications by Mr Clemens for leave to commence various proceedings against PML: see generally the Decisions for the relevant history.

[8] The Court of Appeal refused to give Mr Clemens leave to appeal from that decision: Clemens v Phillip Morris Ltd [2008] VSCA 48.

[9] See paragraph 8 of these reasons.

[10] Clemens v A-G [2009] VSC 28, [15].

[11] Clemens v A-G [2009] VSC 28, [21].

[12] Clemens v A-G [2009] VSC 28, [31].

[13] Clemens v A-G [2009] VSC 28, [25].

[14] Clemens v A-G [2009] VSC 28, [25]-30], citing Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100, 115 and Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, 598.

[15] Clemens v A-G [2009] VSC 28, [31].

[16] See Lindsey v Philip Morris Ltd [2004] FCA 9 and Lindsey v Philip Morris Ltd [2004] FCA 797 which are discussed in Clemens v A-G [2009] VSC 28, [6]. An appeal from the primary judge's decision in Lindsey v Philip Morris Ltd [2004] FCA 9 was dismissed by a Full Federal Court in Lindsey v Philip Morris Ltd [2004] FCAFC 40.

[17] As noted in paragraph 5 of these reasons, Mr Clemens also made brief oral submissions before me.

[18] Section 27B(2)(e) of the Limitation of Actions Act 1958 (Vic) provides that the relevant Part of the Act does not apply to actions for damages in respect of an injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.

[19] [1843] EngR 917; (1843) 3 Hare 100, 115.

[20] [1981] HCA 45; (1981) 147 CLR 589, 600.

[21] Phillip Morris Ltd v A-G [2006] VSCA 21; (2006) 14 VR 538, 541 [12].

[22] Phillip Morris Ltd v A-G [2006] VSCA 21; (2006) 14 VR 538, 562 [116]; Clemens v A-G [2009] VSC 28, [1].

[23] Rogers v The Queen (1994) 181 CLR 251, 255; Phillip Morris Ltd v A-G [2006] VSCA 21; (2006) 14 VR 538, 562 [116].

[24] Walton v Gardiner (1993) 177 CLR 378, 393; Phillip Morris Ltd v A-G [2006] VSCA 21; (2006) 14 VR 538, 542 [20], 556 [85]-[86].

[25] Phillip Morris Ltd v A-G [2006] VSCA 21; (2006) 14 VR 538, 556-7 [87].

[26] [1843] EngR 917; (1843) 3 Hare 100, 115.

[27] [2006] VSCA 21; (2006) 14 VR 538.