Re Sjostrom-Clemens-Lindsey [2003] VSC 94 (17 March 2003)

Supreme Court of Victoria|2003-03-17|Before: BONGIORNO J

PRACTICE and PROCEDURE - Application for leave to bring a proceeding by a vexatious litigant

David James Sjostrom-Clemens-Lindsey is a vexatious litigant, having been so declared on 16 July 1998 pursuant to s.21(2) of the Supreme Court Act 1986. As such he is precluded from commencing any action without the leave of a judge of this Court.

On 3 October 2002 Mr Sjostrom-Clemens-Lindsey made application to me to commence a proceeding against Carlton and United Breweries Ltd, who had been a previous employer of his, on the ground that he had lung disease caused by exposure to asbestos. That exposure was said to be the fault, in a tortious sense, of the proposed defendant, Carlton and United Breweries Ltd.

Having read the material which Mr Sjostrom-Clemens-Lindsey produced on that occasion, I was not satisfied that a case of any kind, prima facie or otherwise, had been made out against Carlton and United Breweries Ltd, but that the issue of causation, which had not been explored at that time, might possibly, if explored, uncover sufficient facts to justify a grant of leave.

Accordingly, rather than dismiss the application, I adjourned it to 3 April 2003 with leave to Mr Sjostrom-Clemens-Lindsey to approach the Court on an earlier date in the event that he obtained further information or further evidence which could be placed before the Court in support of his application.

In fact, rather than proceed with the application against Carlton and United Breweries, Mr Sjostrom-Clemens-Lindsey sought to change the application to an application for leave to proceed to issue proceedings against Phillip Morris Ltd on the ground that his lung disease was not asbestos caused, but rather the result of long standing smoking.

In further support of his application, he filed two affidavits, one dated 12 December 2002 and the other dated 20 February 2003, and wrote a letter to my associate which is on file. It sets out further matters. He has today, appeared before the Court to argue that he should be given leave.

I have read the affidavits which Mr Sjostrom-Clemens-Lindsey relies upon and the annexures to those affidavits being medical reports, the most important of which are reports of Mr Richard Strangward surgeon of 20 November 2002 and of Dr Johnathan Streeton, respiratory physician of 8 November 2002.

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 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 Morris. There is nothing in the material which raises any sort of case of any tort against Phillip 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.

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