Plaintiff v Defendant

2 Subsection 4 prohibits my granting leave unless I am satisfied that the proceeding which is contemplated is not or will not be an abuse of the process of the court.

3 The proceeding in question is a proceeding which is identified in Mr Clemens' affidavit of 28 November 2008 in Annexure B. It is proposed to be issued, according to the document, in the County Court of Victoria in its criminal division. The document itself, however, has the hallmarks of a civil claim to be brought.

4 The thrust of the claim which is proposed is that Mr Clemens has suffered bodily injury in October 2002 as a consequence of his using tobacco products produced by Philip Morris Ltd or its predecessor in law, Philip Morris Australia Ltd.

The bodily injury complained of by the plaintiff was caused by the defendant's recklessness effectively from the 1st July 1967, mixing 'Toxic and Carcinogenic Chemicals' LETHAL IN NATURE AND CONTENT into its products, disregarding the possible consequence of its conduct!.

6 A document such as this prepared by a self represented litigant must be read in a generous way, in a way that does not stick on detail or on formalities. The gist of the claim, and this is also how Mr Clemens explained it, is that the conduct of the defendant was reckless. His assertion that this is a common law offence is just not correct.

7 Insofar as recklessness could give rise to a civil proceeding, the nearest I can imagine it would be would be a claim in negligence. Mr Clemens, however, disavows any claim in negligence, as indeed he must because an earlier application to bring a claim in negligence against this defendant was refused as recently as 17 November this year.

8 In all the circumstances, I do not see this as being a case with any prospect of success or, in substance, any different from the claim which was rejected by the court last month. Accordingly I refuse leave. The application a refused.