Lindsey v Philip Morris Limited [2004] FCA 9 | Case summary

THE COURT ORDERS THAT: 1. The motion for security for costs, notice of which was filed on 18 August 2003, be adjourned sine die. 2. There be no order as to the costs of the motion for security for costs. 3. Pursuant to O 20, r 2 of the Federal Court Rules, the proceeding be dismissed. 4. The applicant pay the respondent's costs of the proceeding, including the costs of the motion for summary judgment, notice of which was filed 18 August 2003. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT the applications 1 By an application dated 26 May 2003 and an amended statement of claim dated 25 July 2003, the applicant, David James Lindsey (also known as David James Sjostrom-Clemens-Lindsey) seeks damages and a declaration that the respondent, Philip Morris Limited ("Philip Morris") pay his medical expenses arising from lung disease and other conditions allegedly suffered by him in consequence of smoking cigarettes that were manufactured by Philip Morris. 2 There are two applications now before the Court. First, by a notice of motion filed 18 August 2003, Philip Morris seeks summary judgment in its favour pursuant to O 20 r 2 of the Federal Court Rules ("the Rules"). Secondly, by a notice of motion also filed 18 August 2003, Philip Morris seeks an order for security for costs in the sum of $65,000 pursuant to O 28 r 3 of the Rules. 3 The history of the proceeding in this Court is short. At the first directions hearing on 23 July 2003, the Court ordered that, on or before 4 August 2003, Mr Lindsey file and serve "a written statement of the acts, facts, matters, circumstances and things relied upon by him in this proceeding in support of any claim proposed to be made against [Philip Morris] pursuant to the Trade Practices Act 1974 (Cth)". As already stated, Mr Lindsey filed an amended statement of claim on 25 July 2003. Subsequently, on 8 August 2003, he filed a document entitled "Notice to Admit Facts (and Authenticity of Documents)". By this document, Mr Lindsey purported to require Philip Morris to admit a variety of matters "for the purposes of these proceedings only". On 21 August 2003, Philip Morris filed a "Notice Disputing Facts", objecting to being required to admit any of the facts specified by Mr Lindsey and, under cover of this objection, disputing the facts to which he referred. Meanwhile, Philip Morris had, as already noted, filed notices of motion for summary judgment and security for costs. On 29 August 2003, the Court made orders in connection with the hearing of these motions. the parties' submissions 4 In support of its motion for summary judgment, Philip Morris submitted that the proceeding should be dismissed or, in the alternative, permanently stayed on the grounds that the proceeding did not disclose any cause of action against it under the Trade Practices Act 1974 (Cth) ("the TPA") and was frivolous and vexatious. Philip Morris also maintained that the proceeding was an abuse of process because it was "an attempt to circumvent properly-made orders of the Victorian Supreme Court" against Mr Lindsey in previous proceedings. 5 In written submissions, Philip Morris referred to the well-known observations of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 ("General Steel") at 129 and submitted that, upon examination of Mr Lindsey's amended statement of claim, and the other material on which he relied, it was apparent that his claim was "so obviously untenable that it should not be permitted to proceed". Philip Morris contended that Mr Lindsey's pleading was "seriously flawed and fail[ed] to disclose any cause of action under Part V of the TPA". In relation to the amended statement of claim, Philip Morris said: The essential flaws in the document are that: (a) it relies, seemingly as the nub of the Applicant's case, upon acts of the Respondent and of the Applicant in 1972 and 1973 that occurred prior to the coming into operation of the TPA, by reason of which no such claim may arise; (b) it does not plead a clear factual basis for the assertion of a breach of section 52 of the TPA - it does not identify with precision the conduct said to be in trade and commerce and does not identify the representations alleged to have been made - and thereby fails to define the issues between the parties; (c) it obscures and thereby fails to plead important elements, such as causation; (d) it includes language that is embarrassing to a TPA claim; and (e) it advances "further" and "alternative" claims, the "further" or "alternative" nature of which is unclear, and the form of which is embarrassing. [Footnotes omitted] At the hearing, counsel for Philip Morris enlarged on these matters, submitting that Mr Lindsey failed to identify with sufficient precision the factual basis upon which he sought to pursue his claim based on an alleged breach of s 52 of the TPA, or any other provision of Part V of the TPA, including any causal link between the conduct complained of and the damage claimed. 6 In written submissions, Philip Morris also contended that: (a) the present pleading advances a hopelessly confused and manifestly untenable case; (b) it may be inferred, from at least the following, that the present proceeding has been instituted with the intention of annoying or embarrassing the Respondent: (i) the Applicant has a history of advancing hopeless and harassing litigation, so much so that he has been declared a vexatious litigant by the Supreme Court of Victoria and has had a further recent High Court proceeding referred to the County Court where it there foundered; (ii) the present litigation seems relevantly identical to three recent attempts to bring the case in the Supreme Court, each of which was rejected by a Judge of that Court; and (iii) in the course of bringing those applications, the Applicant conceded that his medical advice was that "if he ceased smoking his medical condition would improve at least in some aspects"; (c) from the same context, it may be inferred that the present case is brought for the purpose of the Applicant conducting a vexatious proceeding, rather than the determination of rights and liabilities. [Footnotes omitted] At the hearing, counsel for Philip Morris also submitted that Mr Lindsey's history in other courts and tribunals was relevant to the question of relief if Philip Morris was otherwise successful on its summary judgment application. 7 At the directions hearing on 23 July 2003, Mr Lindsey explained the nature of his complaint against Philip Morris in the following terms: … I've been a long-standing smoker of the respondent's imported tobacco product identified as Marlboro Filter. Then from approximately late 1987 I then smoked the respondent's tobacco product, which was Australian made, known as and identified as Long Beach Mild. Subsequently, of my long-standing cigarette smoking, I have been diagnosed with a number of medical complaints which are smoking-related and smoking-caused. … . I've been diagnosed with suffering a degree of emphysema, a degree of smoking-related lung disease. I have also been diagnosed with several two-centimetre diameter to four-centimetre diameter plebs or cysts, subpleural lungs. The fact of the matter is this: I am seeking a claim against Philip Morris Ltd tobacco company with respect to personal injury, a claim for damages and also an order. Also, an agreement from them that they will pay my specialist medical treatment and rehabilitative care. … . I am unable to claim Medicare because the injury has been diagnosed as smoking-related. … . 8 Subsequently, at the hearing of the motions, Mr Lindsey relied on what he termed "Applicants Outline of Submissions in Defence of Allens Arthur Robinsons' Two Motions dated the 15/08/2003". He stated that his case was not dependent on any representations that Philip Morris may have made, although he relied on s 52 of the TPA. His case was: The respondent failed to advise me that his tobacco product, whether it be imported or locally made, contained toxic chemicals which could produce health problems, as such. Now, the government at the time acted in a responsible manner, and they enforced themselves on the tobacco company to include these health warnings. But that was an act by a responsible person. It is the respondent himself whom has failed in his duty to protect the consumer. It is the respondent whom has failed - and it's very plausible, it's not implausible - it's the respondent whom failed to say to the consumer that Philip Morris Ltd would like to advise that smoking of this tobacco product could -I'm not saying would, but could - cause health problems. Now, I make reference to how I started to smoke in 72, 73. Even to this day, the respondent has not advised me, but the cause as to why I started smoking was the promotion of its tobacco product in the 70s, and it can be traced back to even early 60s, so I was bred on the Marlboro man. … Well, tobacco was promoted in such a way which linked it to a historical period, an historical flavour which appealed to me, not only to me, but to the young boys of my era, which led me into smoking. As such, or resultant of that longstanding smoking, which accrued at the date of Dr Streeton's diagnosis of my condition … Mr Lindsey maintained that he had medical evidence that confirmed that he had a smoking-related lung disease and secondary problems. 9 At the hearing, Mr Lindsey specifically objected to those parts of the 15 August 2003 affidavit of Mr O'Donahoo (who was the respondent's solicitor) concerning Mr Lindsey's previous litigation in other courts and tribunals on the basis that: … those facts as detailed quite prolifically by Ian Peter Scott O'Donahoo, that they are leading, misleading, influencing the court's opinion against me, citing past litigative nature as the grounds to dismiss this proceeding, to secure the orders being sought and not addressing the question specifically of frivolity before the court in relation to the proceeding at hand. 10 As appears below, I reject Mr Lindsey's objection. In dealing with this summary judgment application, however, I rely on the matters the subject of the objection only to a very limited extent. Mr Lindsey also submitted that, if there were defects in his pleading, he should be permitted the opportunity to cure them by repleading his case. As appears below, I also reject this submission. 11 As already indicated, relying on s 56 of the Federal Court of Australia Act 1976 (Cth) and on numerous authorities, including Bell Wholesale Co Ltd v Gates Export Corporation (No 2) (1984) 2 FCR 1 at 4 per Sheppard, Morling and Neaves JJ, Equity Access Pty Ltd v Westpac Banking Corporation (1989) 16 IPR 431; (1990) 12 ATPR 40,994 per Hill J and Jodast Pty Ltd v A & J Blattner Pty Ltd (1991) 104 ALR 248 at 252 per Hill J, Philip Morris also contended that Mr Lindsey should be required to provide security for costs in the amount of $65,000 by a date to be fixed and, in default on his part, the proceeding should stand dismissed. Mr Lindsey opposed this application upon the basis that Philip Morris had not established any of the matters that might entitle it to such an order, being an order that would, he said, unfairly prevent him from continuing with his action. 12 For reasons that are plain enough, I deal first with the application for summary judgment. the summary judgment application 13 By its motion, Philip Morris seeks orders that: 1. Pursuant to order 20, rules 2(1)(a), (b) and (c) of the Federal Court Rules or the Court's implied powers, the proceeding be dismissed or permanently stayed on the grounds that no reasonable cause of action is disclosed and that it is frivolous or vexatious or an abuse of the process of the Court. 2. The Applicant pay the Respondent's costs of this motion. 3. Such further or other orders as the Court thinks fit. 14 Order 20 r 2 of the Rules states: (1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding - (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding. (2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1). 15 At the hearing of its application for the summary judgment, Philip Morris relied on two affidavits of its solicitor, Ian Peter Scott O'Donahoo, sworn on 15 August 2003 and 26 September 2003 respectively. Mr O'Donahoo has also sworn another affidavit on 15 August 2003 in support of the respondent's security for costs application. Mr Lindsey relied on his own affidavits sworn on 25 August 2003 and 8 September 2003. He also sought leave to rely on four documents headed "Evidence: General" (one document dated 11 August 2003 and another dated 25 August 2003, and two documents dated 8 September 2003) and the material that accompanied them. Both parties relied on written submissions, which they augmented at the hearing of the motions. the case as pleaded 16 By his application and amended statement of claim, Mr Lindsey seeks to invoke what he terms the "jurisdictional authority [of this Court] to hear and determine any matter which arises out of or under PART V of the [TPA]". He apparently seeks to allege that Philip Morris has contravened s 52 of the TPA in connection with the promotion of its "Imported Tobacco Product through the Media and Television, at all relevant and material times since 1972 or 1973." Paragraph 5 of his amended statement of claim states: 5. CHRONOLOGY OF CIRCUMSTANCE, (i) That after the Respondents [sic] promotion of it's [sic] Imported Tobacco Product through the Media and Television, at all relevant and material times since 1972 or 1973 the Applicant became a consumer and longstanding smoker of the tobacco product known and identified as MARLBORO (filter cigarettes) up till [sic] late 1987. (ii) That after the Respondents [sic] promotion through retail outlets of it's [sic] locally made Tobacco Product the Applicant since late 1987 and up till [sic] July 1999 was a consumer and longstanding smoker of LONGBEACH MILD. (iii) That resultant of the Applicants [sic] longstanding smoking of the Respondents [sic] Imported Tobacco Product identified as MARLBORO (filter cigarettes) combined with longstanding smoking of the Respondents [sic] locally made Tobacco Product identified as LONGBEACH MILD the Applicant in or about June 2000 was stricken down with a breathing disorder. 17 Mr Lindsey asserts that, by reason of these matters, he has suffered damage, particularised as: (i) A Degree of smoking related Lung Disease. (ii) Several small smoking related subpleural Blebs or Cysts of various diameters in size. (iii) A Degree of smoking related Emphysema. (iv) Smoking related Small Airways Disease. (v) Smoking related Dry Irritable Cough diagnosed as Smoker's Bronchitis. (vi) Smoking related Nicotine Addiction. (vii) Smoking related bodily stench. (viii) Smoking related Carbon Monoxide over saturation and or poisoning. 18 Mr Lindsey alleges that, in 1972 or 1973, Philip Morris was "fully aware and knowledgeable of the foreseeable health risks associated with [his] longstanding smoking of it's [sic] Imported Tobacco Product known as Marlboro (filter cigarettes) and did with hold [sic] from [him] such knowledge". His further (verbatim) pleading is that: FURTHER and on the alternative the Applicant also asserts and alleges that the outer packaging of the Respondents Imported Tobacco Product as well as it's locally made Tobacco Product prior to the 1990's DID NOT HAVE inscribed upon them distinguishable well defined bold lettering warning the Applicant of the foreseeable health risks associated with the longstanding smoking of the Respondents Imported Tobacco Product as well as it's locally made Tobacco Product, despite the fact the Respondent was fully knowledgeable and aware of the foreseeable health risks and dangers prior too 1972 or 1973 when the Applicant first started smoking the Respondents Tobacco Products. BY reason of the aforesaid matters as outlined …, the Respondent by not revealing to the Applicant the foreseeable health risks associated with the longstanding smoking of it's Imported Tobacco Product in 1972 or 1973 and again in late 1987 regarding its locally made Tobacco Product the Respondent did wilfully contribute to the Applicants smoking related Lung Disease and Secondary Problems. FURTHER and alternatively for completeness the Respondent by not advising the Applicant before commencing to smoke it's Imported Tobacco Product in 1972 or 1973 was an act of deceptiveness committed by the Respondent towards the Applicant as the Applicant not knowing any different at the age of about 14 years was mislead into believing it was safe to do so by the Respondents promotion of it's Imported Tobacco Product. BY reason of the aforesaid matter … the Respondent in 1972 or 1973 did engage in conduct in Trade and Commerce which was misleading deceptive did mislead and deceived, (Section 52(1), PART V, Trade Practices Act of 1974. BY reason of the aforesaid matters the Applicant did has been and still is suffering damage. consideration of summary judgment application 19 The Court will only dismiss or stay a proceeding under O 20 r 2 in a very clear case. In General Steel, at 128-129,Barwick CJ accepted that "the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion". The standard of satisfaction required for summary judgment is that stated in General Steel at 129-130: see also Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J and Webster v Lampard (1993) 177 CLR 598 at 602-603 per Mason CJ, Deane and Dawson JJ. Upon examination of Mr Lindsey's claim, I am persuaded, for the reasons set out below, that it is appropriate to terminate the proceeding before trial. 20 A statement of claim must set out the facts, which assuming proof at trial, would make out a complete cause of action. A statement of claim that fails to disclose a tenable cause of action is liable to be struck out under the Rules: see the authorities referred to by Weinberg J in McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 ("McKellar") at 418-419. In Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458 ("Pridmore") at 462-463, RD Nicholson J said: The motion for strike out is brought pursuant to O 20 r 2 and/or O 11 r 16 of the Federal Court Rules. The grounds relied upon are that the pleadings referred to disclose no reasonable cause of action, are scandalous, frivolous and/or vexatious and may prejudice, embarrass or delay the fair trial of the action. A cause of action is every allegation of fact which the plaintiff must prove to establish the right to the relief claimed … A 'reasonable cause of action' means a cause of action with some chance of success, when considering the allegations of fact contained in the challenged pleading alone. The terms 'vexatious' and 'frivolous' have been used interchangeably … . 'Frivolous' has been held to be apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed … . 'Vexatious' has been held to be apt to describe an action which is a sham and which cannot possibly succeed … . For the reasons stated below, Mr Lindsey's amended statement of claim fails to set out a tenable cause of action. 21 The gist of Mr Lindsey's claim in this Court is that, by reason of the failure by Philip Morris to warn Mr Lindsey, in 1972 or 1973, of the risk of injury inherent in smoking its cigarettes, Philip Morris engaged, in trade and commerce, in misleading and deceptive conduct or conduct that was likely to mislead or deceive. His claim is that he suffered loss and damage by reason of this conduct. In order to make out his case under s 52 and be compensated for any loss and damage under s 82(1) of the TPA, Mr Lindsey would need to establish (1) that Philip Morris did the thing complained of; (2) that, viewed objectively, this conduct was misleading or deceptive or likely to mislead or deceive; and (3) that there is a causal connection between this conduct and the loss and damage for which he seeks compensation: see, e.g., Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, at 525-526 per Mason CJ, Dawson, Gaudron and McHugh JJ. 22 Mr Lindsey's claim must, so it seems to me, fail at the outset. First, it would not be open to a court to find that Philip Morris did the thing of which he complains. That is, it would not be open to a court to find that Philip Morris failed to warn potential smokers that smoking the cigarettes manufactured by it was hazardous to health. It is a notorious fact, of which judicial notice may be taken, that from 1973 all cigarette packets that Philip Morris manufactured and distributed in Australia carried a health warning in conformity with State and Territory legislation. Regarding judicial notice, see Stenhouse v Coleman (1944) 69 CLR 457 at 469 per Dixon J; Gerhardy v Brown (1985) 159 CLR 70 at 141-142 per Brennan J; Holland v Jones (1917) 23 CLR 149 at 153 per Isaacs J; Commonwealth Shipping Representative v P & O Branch Service [1923] AC 191 at 212 per Lord Sumner (which was approved in All States Frozen Foods Pty Ltd v Commissioner of Taxation (1990) 21 FCR 457 at 465-466 per Bowen CJ, Lockhart and Gummow JJ). See further J D Heydon, Cross on Evidence, (6th edition, Butterworths, Sydney, 2000) at [3005]-[3015]; and Australian Oil Refining Pty Ltd v Bourne (1980) 28 ALR 529 at 532-533 per Stephen, Mason, Aickin and Wilson JJ. 23 Between 1973 and 1987, State and Territory legislation required cigarette packets displayed for sale to persons such as Mr Lindsey to show the following warning: "WARNING - SMOKING IS A HEALTH HAZARD." 24 In Victoria, this requirement was imposed by the Cigarette Package Labelling Regulations 1972 (Vic) (made under the Health Act 1958 (Vic)and effective from 1 January 1973 to 31 July 1984) and the Health (Tobacco Packages) Regulations 1984 (Vic) (made under the Health Act 1958 (Vic)and effective from 1 August 1984 to 1 September 1986). See also Cigarette Containers (Labelling) Ordinance 1972 (ACT) (effective from 1 January 1973 to 31 August 1987); Cigarettes (Labelling) Regulations 1973 (NSW) (made under the Cigarettes (Labelling) Act 1972 (NSW)andeffective from 1 July 1973 to 30 June 1987); Cigarette Containers (Labelling) Ordinance 1972 (NT) (effective from 1 January 1973 to 14 June 1987); Therapeutic Goods and Other Drugs Regulations 1982 (Qld)(made under the Health Act 1937-1981 (Qld)and effective from 1 July 1982 to 30 June 1987); Cigarettes (Labelling) Regulations 1973 (SA) (made under the Cigarettes (Labelling) Act 1971-1972 (SA) and effective from 1 July 1973 to 30 June 1987); Cigarettes (Labelling) Regulations 1973 (Tas) (made under the Cigarettes (Labelling) Act 1972 (Tas) and effective from 1 July 1973 to 17 August 1987); and Cigarettes (Labelling) Regulations 1972 (WA) (effective from 1 January 1973 to 30 June 1986). 25 From 1987 to 1994, Commonwealth, State and Territory legislation required cigarette packets offered for sale to display one of the following health warnings: "SMOKING CAUSES LUNG CANCER Health Authority Warning" "SMOKING CAUSES HEART DISEASE Health Authority Warning" "SMOKING DAMAGES YOUR LUNGS Health Authority Warning" "SMOKING REDUCES YOUR FITNESS Health Authority Warning" 26 In Victoria, this was the effect of the Health (Tobacco Warning Labels) Regulations 1986 (Vic) (made under the Health Act 1958 (Vic) and effective from 1 July 1987 to 31 March 1994) and the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 1994 (Cth) ("the Commonwealth Regulations") (effective from 1 April 1994 to 31 December 1994). In the Australian Capital Territory, see Tobacco Products (Health Warnings) Ordinance 1986 (ACT) (effective from 1 September 1987 to 31 March 1994) and the Commonwealth Regulations. In New South Wales, see the Commonwealth Regulations and the Public Health Act 1902 (NSW) (as amended by the Public Health (Tobacco) Amendment Act 1986 (NSW) (effective from 1 July 1987 to 17 November 1991) and the Public Health Act 1991 (NSW) (effective from 18 November 1991 to 31 March 1994). In the Northern Territory, see the Commonwealth Regulations and the Cigarette Containers (Labelling) Regulations 1987 (NT) (made under the Cigarette Containers (Labelling) Act 1972 (NT) and effective from 1 July 1987 to 10 November 1992) and the Tobacco Regulations 1992 (NT) (made under the Tobacco Act 1992 (NT) and effective from 11 November 1992 to 31 March 1994). In Queensland, see the Commonwealth Regulations and the Therapeutic Goods and Other Drugs Regulations 1982 (Qld) (as amended by the Therapeutic Goods and Other Drugs (Amendment) Regulations 1986 (Qld) made under the Health Act 1937-1984 (Qld) and effective from 1 July 1987 to 31 March 1994). In South Australia, see the Commonwealth Regulations and the Tobacco Products Control Regulations 1987 (SA) (made under the Tobacco Products Control Act 1986 (SA) and effective from 1 July 1987 to 31 March 1994). In Tasmania, see the Commonwealth Regulations and the Tobacco Products (Labelling) Regulations 1987 (Tas) (made under the Tobacco Products (Labelling) Act 1987 (Tas) and effective from 7 October 1987 to 31 March 1994). In Western Australia, see the Commonwealth Regulations and the Tobacco (Warning Labels) Regulations 1987 (WA) (made under the Health Act 1911 (WA) and effective from 1 July 1987 to 31 March 1994). 27 Since 1 January 1995, the effect of reg 5 and Sch 1 of the Commonwealth Regulations has been to require every packet of cigarettes sold in Australia to display one of the following health warnings: "SMOKING CAUSES LUNG CANCER Government Health Warning" "SMOKING CAUSES HEART DISEASE Government Health Warning" "SMOKING IS ADDICTIVE Government Health Warning" "SMOKING KILLS Government Health Warning" "SMOKING IS ADDICTIVE Government Health Warning" "SMOKING KILLS Government Health Warning" "SMOKING WHEN PREGNANT HARMS YOUR BABY Government Health Warning" "YOUR SMOKING CAN HARM OTHERS Government Health Warning" 28 Further, from 1972 to 1976, the Broadcasting and Television Act 1942 (Cth) required broadcast licensees to follow each advertisement for cigarettes or tobacco products broadcast by them with a warning that "Medical authorities warn that smoking is a health hazard". Since 1 September 1976, Commonwealth legislation has prohibited broadcast licensees from broadcasting tobacco advertisements: see Broadcasting and Television Act 1942 (Cth) (as amended by the Broadcasting and Television Amendment Act 1976 (Cth) (effective from 1 September 1976 to 4 October 1992); Broadcasting Services Act 1992 (Cth) (effective from 5 October 1992 to 30 June 1993) and s 13 of the Tobacco Advertising Prohibition Act 1992 (Cth) and subcl 7(1) of Sch 2 of the Broadcasting Services Act 1992 (Cth) (effective from 1 July 1993). 29 Mr Lindsey's claim that Philip Morris contravened s 52 of the TPA by failing to warn of the health risks associated with smoking must be regarded as hopeless in light of the fact that, in conformity with legislative requirements, Philip Morris has displayed health warnings on all cigarette packets offered for sale during the last 30 years and health warnings accompanied television advertising from 1972 to 1976 (after which such advertising was prohibited). Pars 8 to 14 of the amended statement of claim could not be made out at trial. Pars 1 to 7 of the amended statement of claim do not allege any other conduct that could constitute infringing conduct. 30 If Mr Lindsey's case were regarded as a case about the representations that Philip Morris made to him in the early 1970s, then, again, no actionable misrepresentation has been pleaded. Although Mr Lindsey said that his was not a case about representations, he contended, as noted above, that Philip Morris made representations to him that were misleading and deceptive and "… the cause as to why I started smoking was the promotion of [the respondent's] tobacco product in the 70s, and it can be traced back to even early 60s, so I was bred on the Marlboro man." In written submissions attached to the document headed "Evidence: General" and dated 11 August 2003, Mr Lindsey said that Philip Morris's promotion of its product in the 1970s showed: [C]owboys through out the wild west [who] are renowned through out time as being tough and rugged, that …the Applicant prior to 1972 and or 1973 was led into believing by the respondents promotion of it's Imported Tobacco Product that if … [he] smoked Marlboro (filter cigarettes) … the Applicant too would [become] tough and rugged just like the cowboys of the wild west. 31 This theme was reiterated elsewhere in his material. It is unclear what aspect of this promotion is said to constitute a relevant misrepresentation, unless Mr Lindsey's complaint is that, although he smoked the cigarettes, he did not become "tough or rugged" like the cowboys depicted in the promotional material. 32 Plainly enough, representations of this kind are statements in the nature of commendatory puffery and not of an actionable kind. A representation of this kind falls to be considered in the light of the particular facts and "in the light of the ordinary incidents and character of commercial behaviour": see General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164, at 178 per Davies and Einfeld JJ. Statements of this kind are "not capable of being objectively proved to be true or false": see Pappas v Soulac (1983) 50 ALR 231 at 234 per Fisher J. To the extent that they are essentially puffery, they should not be elevated to the status of potentially misleading conduct. Mr Lindsey's contention that the broadcasting of a "particular period in American history … of the days of the old west, cowboys and cowboyism [sic], i.e, Manhood, Toughness, Ruggedness and stigmata [sic] of heroism" was an actionable misrepresentation that induced him to smoke cannot stand. Promotional representations of this kind can only be regarded as puffery. 33 Apart from these matters, there remain serious deficiencies in the amended statement of claim. Let it be accepted that a failure to provide information can constitute conduct that is misleading or deceptive for the purposes of s 52 of the TPA. According to the authorities, in a case of this kind, the applicant must establish not only that the respondent failed to provide the information that resulted in him being misled, but also that the respondent deliberately withheld the information, which the respondent knew should have been disclosed. Finkelstein J explained this aspect of the law in Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd (1998) 155 ALR 714 ("Costa Vraca") at 721-723. As his Honour said, in Costa Vraca at 722: It is clear that a failure to provide information can be conduct which is misleading or deceptive. For the purposes of s 52(1) "engaging in conduct" is defined in s 4(2)(a) as a reference to doing or refusing to do any act and by s 4(2)(c) a reference to refusing to do an act includes a reference to refraining (otherwise than inadvertently) from doing that act. However, when the complaint is that s 52(1) has been infringed by conduct that involves either refusing or refraining from doing an act before that conduct is actionable it must have been deliberately engaged in. Bowen CJ in Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 77; 68 ALR 77 at 84 said this followed from the use of the words "refuse" and "refrain" in s 4(2). This conclusion is reinforced by the fact that by s 4(2)(c) conduct includes the refraining from doing an act provided it is "otherwise than inadvertently": see also Edgar v Farrow Mortgage Services Pty Ltd (in liq) (1992) ATPR 46-096 at 53,375; Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1996) ATPR 46-159 at 53,362; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 42; 110 ALR 608; Diversified Mineral Resources NL v CRA Exploration Pty Ltd (1995) ATPR 41-381 at 40,284. Accordingly, to determine whether Berrigan has contravened s 52(1), which must be established before it can be said that Mr Kocks has been involved in a contravention of the Act, two questions arise for consideration. The first is whether the failure by Berrigan to inform Costa Vraca that it had used 2,4-D ester in its spraying rig was misleading or deceptive conduct. The second question is whether that conduct was deliberate. 34 By his amended statement of claim, Mr Lindsey has not alleged that Philip Morris deliberately refrained from supplying him with the information that smoking was likely to be injurious to health. There is nothing in the material that he has placed before the Court that would support this allegation. 35 Further, I accept that, as Philip Morris submitted, the amended statement of claim failed to allege any causal link between the conduct complained of and the damage Mr Lindsey allegedly suffered. As Weinberg J said in McKellar at 419: When a claim is made under s 82 of the Act, the gist of the cause of action being damage, the statement of claim must allege the damage suffered, and that it was suffered by reason of the contravention of the Act. Material facts must be pleaded which show the required causal link between any alleged contravention of the Act, and any damage to the applicant. … . It is not sufficient simply to allege loss and damage as a result of alleged contraventions of the Act; it is necessary to identify a causal connection between the impugned conduct and such loss as is said to have been suffered by the applicants: Bond Corp Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 222; 71 ALR 125 per French J, cited with approval by Burchett J in Multigroup Distribution Services Pty Ltd [v TNT Australia Pty Ltd & Ansett Transport Industries (Operations) Pty Ltd (1996) ATPR 41-522] and by Goldberg J in Mitanis [v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR 41-591]. 36 In such a case as this, it is incumbent on an applicant to state precisely what warning should have been given and what difference it would have made to him if the warning had been given. Given that, from 1973, all cigarette packages distributed by Philip Morris in Australia contained health warnings of the kind referred to above, it does not seem open to Mr Lindsey to contend that further health warnings by Philip Morris would have made any appreciable difference to his smoking: cf Rosenberg v Percival (2001) 205 CLR 434. The causation problems that Mr Lindsey faces with respect to his breach of s 52 claim are equivalent to the causation difficulties that he has already encountered with respect to his attempts to plead a cause of action in negligence: see below and compare San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 at 366 per Brennan J. For this reason also, it is impossible to discern a tenable negligence claim in Mr Lindsey's amended pleading. The photographs that Mr Lindsey placed before the Court did not remedy this causation deficiency. 37 Even if Mr Lindsey could overcome some or all of the deficiencies in his pleading, there remains the further difficulty that the acts and omissions of which he complains are acts and omissions that occurred in 1972 or 1973. These acts and omissions do not support an action for damages under ss 52(1) and 82(1) of the TPA. Subsection 82(1) provides that: A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV, IVA, IVB or V or section 51AC may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention. [Emphasis added] 38 Bearing in mind the terms of s 82(1), it is clear enough that there can be no action for damages in reliance on s 52(1) in respect of conduct that occurred before the commencement of the TPA on 1 October 1974. In respect of acts and omissions in 1972 or 1973, Mr Lindsey does not have a case. These acts and omissions are, it seems, the substance of his case. He has not referred to any other acts and omissions that might support his claim for damages. 39 For these reasons, I am satisfied that the amended statement of claim discloses no tenable cause of action and is liable to be struck out under O 20, r 2 of the Rules. I would dismiss the proceeding. For the following reasons, I would not grant Mr Lindsey liberty to replead. 40 First, it seems to me that his claim is incapable of being turned into a tenable one. The claim that Mr Lindsey formulates is different from that treated as arguable by Bell J in Cauvin v Philip Morris Limited [2003] NSWSC 1225. Mr Lindsey's claim (as he formulates it) is, so it seems to me, hopeless in its very conception. 41 Secondly, pursuant to my order of 23 July 2003, Mr Lindsey has already had an adequate opportunity to plead the "acts, facts, matters, circumstances and things relied upon by him in this proceeding". Before this order was made, Mr Lindsey's attention was drawn to the fact that his statement of claim was deficient. On 25 July 2003, he filed an amended statement of claim, but the deficiencies remained. I accept that, as counsel for Philip Morris submitted, Mr Lindsey has not "articulated [a claim] at all in a manner that could possibly or even faintly be said to be adequate for the purposes of enabling a case to be fought". 42 Finally, although unrepresented in this proceeding, Mr Lindsey would not appear to be unfamiliar with the courts and with what they require of him. As appears from Mr O'Donahoo's affidavit of 15 August 2003, acting under s 21(2) of the Supreme Court Act 1986 (Vic), the Supreme Court of Victoria declared Mr Lindsey a vexatious litigant on 16 July 1998. The terms of the order (which is still current) prevent him from instituting proceedings in any State court or tribunal without leave of the Supreme Court. Before the order was made on 16 July 1998, Mr Lindsey had instituted 17 proceedings in various State courts and in the Australian Industrial Relations Commission. In making the order, Kellam J said that Mr Lindsey had been "consumed by an obsessional pursuit through the Courts of grievances entertained by him against his employer, its workers compensation insurer, the [Victorian WorkCover Authority] and solicitors and doctors involved in his claims": see Attorney-General for the State of Victoria v Lindsey (unreported, Supreme Court of Victoria, Kellam J, 16 July 1998) at 18. 43 Since 16 July 1998, Mr Lindsey has made six applications for leave to commence legal proceedings in the Supreme Court and in the County Court of Victoria against various parties other than Philip Morris. The Supreme Court dismissed four of these applications, granting two of them. Of these two, only one proceeded to a hearing, at which Mr Lindsey was unsuccessful. Most of these applications related to his alleged workplace injuries. He has also commenced a further seven proceedings against parties other than Philip Morris in the High Court of Australia, the Federal Magistrates Court of Australia and the Commonwealth Administrative Appeals Tribunal. Two of these proceedings were remitted to the County Court, but Mr Lindsey failed to obtain leave to proceed from the Supreme Court. The other five proceedings were dismissed. 44 Mr Lindsey has also previously sought to proceed against Philip Morris. He made three substantially identical applications against the company on 12 December 2002, 17 April 2003 and 15 May 2003. The Court dismissed all three applications. In refusing leave to commence proceedings against Philip Morris, the Court commented, on each occasion, on Mr Lindsey's failure to particularise any claim in tort against Philip Morris and the lack of evidence in support of the claim. On 17 March 2003, Bongiorno J said at [8]: Having read all of that material and having heard Mr Sjostrom-Clemens-Lindsey this morning, I am not satisfied that he has produced the material necessary to permit him to now sue Phillip [sic] Morris Ltd. The principal defects in the material which he produces relate to the alleged cause of action which he would have to particularise against Phillip [sic] Morris. There is nothing in the material which raises any sort of case of any tort against Phillip [sic] Morris. Evidence to implicate it 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. (See Re Sjostrom-Clemens-Lindsey [2003] VSC 94). 45 On 1 May 2003, Smith J said at [4]: I refer to the 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 that is connected 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 aspects. 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. (See Sjostrom-Clemens-Lindsey v Attorney General for the State of Victoria [2003] VSC 132). 46 Finally, on 21 May 2003, Coldrey J said at [4]: 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. (See Attorney-General v Lindsey [2003] VSC 176). 47 The alleged facts that Mr Lindsey relies on in the present proceeding are, in substance, the alleged facts that were relied on in the three applications for leave to commence proceedings against Philip Morris made in the Supreme Court. For the reasons set out above, it does not appear that Mr Lindsey's case is any better in this Court than in the Supreme Court. disposition of the motions 48 In the circumstances of the case, and having considered all the material relied on by Mr Lindsey, I propose to dismiss the proceeding pursuant to O 20 r 2 of the Rules. Having regard to the outcome of the application for summary judgment, it is unnecessary to say anything further about the application for security for costs also made by Philip Morris. I propose to adjourn this latter application sine die. 49 Accordingly, the orders I would make are: 1. The motion for security for costs, notice of which was filed on 18 August 2003, be adjourned sine die. 2. There be no order as to the costs of the motion for security for costs. 3. Pursuant to O 20, r 2 of the Federal Court Rules, the proceeding be dismissed. 4. The applicant pay the respondent's costs of the proceeding, including the costs of the motion for summary judgment, notice of which was filed on 18 August 2003.

Lindsey v Philip Morris Limited

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Judgment (7 paragraphs)

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Legislation Cited (40)

Cases Cited (26)

Cited By (2)