Attorney-General v Lindsey [2003] VSC 176

5. On 17 March 2003 the applicant appeared before Bongiorno, J. applying for leave to commence a proceeding against Philip Morris Ltd on the ground that a lung disease from which he suffered was caused by that firm. Bongiorno, J., having considered the material advanced by the applicant, including medical reports from Dr Jonathon Streeton, a respiratory physician, and Mr Richard Strangward, a surgeon, which reports were dated 8 and 20 November respectively; having read the affidavit material produced by the applicant; and having heard from him, refused the application. His Honour concluded:

"Evidence to implicate it [Philip Morris] in the disease which Mr Sjostrom-Clemens-Lindsey now says he suffers from is sparse, perhaps non-existent. It does not justify permitting him to sue."

9. A further application came before Smith, J. on 1 May of this year. In the course of his judgment refusing leave to institute proceedings, His Honour stated:

"I refer to material relied upon by the applicant which has been placed on the file. While it supports the applicant's assertion that he is suffering from lung disease and that it is connected with his smoking, he does not have evidence which would support a case of actionable fault on the part of Philip Morris which connects it causally to the present lung disease. In addition, he frankly acknowledged that the medical advice he has received is that if he ceased smoking his medical condition would improve at least in some respects. He would need evidentiary material addressing that issue. He also frankly indicated that in about July 1999 he switched to cigarettes produced by the American Tobacco Company called "Horizon" and "Holiday". I note that he also has stated, as revealed in medical reports and to this Court, that the symptoms of breathlessness of which he now complains first started causing concern in June 2000. Thus, he also needs material that causally links the lung disease of which he now complains to the proposed defendant, Philip Morris."

13. I have read the material which the judges to whom I have referred had access. I have also read the affidavit of the applicant dated 15 May 2003. It contains a draft statement of claim for the proposed action. It is a revamped and more detailed statement of claim than the one which is contained in the applicant's earlier affidavit of 17 April 2003, but it does not, and cannot, of itself overcome the evidentiary deficiencies alluded to in the previous judgments. Nothing in the material presented on this application alters the situation which existed when the previous applications were considered.

16. In the circumstances, I am unable to be satisfied "that the proceedings are not or will not be an abuse of the process of the Court", to quote s.24(4) of the Supreme Court Act. It follows that I am obliged to refuse the application for leave.

19. By paragraph 22 of the applicant's affidavit he seeks an indefinite waiver of the Statute of Limitations in relation to a motor vehicle accident in which he was involved on 27 August 1999. The matter has already been before the courts, with Her Honour Judge Gaynor ruling on 18 April 2003 that the applicant had not established that he had sustained a serious injury within the meaning of s.93(17) of the Transport Accident Act 1986. Her Honour ruled, therefore, that the proceeding could not be commenced pursuant to s.93(4) of the Act. It is open to the applicant to appeal that decision, and that is the appropriate course to take if that is desired. In any event, the relief sought in this Court is misconceived.

22. In the matter of the proposed action against Philip Morris, it would certainly, in my view, be advisable for the applicant to obtain legal advice as to the procedural and evidentiary requirements to get any claim off the ground. I have suggested that such advice be sought from a community legal centre or some similar organisation, having regard to what the applicant has told me about difficulties in obtaining advice from both private solicitors and indeed the Legal Aid Commission whilst he carries with him the tag of a vexatious litigant. Whether the applicant wishes to take that advice is, of course, entirely a matter for him.

25. In all the circumstances the application for leave to issue proceedings must be refused.