FEDERAL COURT OF AUSTRALIA Lindsey v Philip Morris Limited [2004] FCAFC 40 PRACTICE AND PROCEDURE - appeal – dismissed as incompetent Trade Practices Act 1974 (Cth) s 52 Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Court Rules O20 r2, O52 r2, r4, r10, r18 DAVID JAMES LINDSEY (NOW KNOWN AS DAVID JAMES SJOSTROM-CLEMENS-LINDSEY) v PHILIP MORRIS LIMITED V55 OF 2004 WHITLAM, MARSHALL and FINKELSTEIN JJ 26 FEBRUARY 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA REGISTRY V55 OF 2004 BETWEEN: DAVID JAMES LINDSEY (NOW KNOWN AS DAVID JAMES SJOSTROM-CLEMENS-LINDSEY) APPELLANT AND: PHILIP MORRIS LIMITED RESPONDENT JUDGES: WHITLAM, MARSHALL and FINKELSTEIN JJ DATE OF ORDER: 26 FEBRUARY 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed as incompetent. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V55 OF 2004 BETWEEN: DAVID JAMES LINDSEY (NOW KNOWN AS DAVID JAMES SJOSTROM-CLEMENS-LINDSEY) APPELLANT AND: PHILIP MORRIS LIMITED RESPONDENT JUDGES: WHITLAM, MARSHALL and FINKELSTEIN JJ DATE: 26 FEBRUARY 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT 1 The appellant, a smoker, commenced a proceeding in this Court on 26 May 2003 in which he sought, among other relief, damages against the respondent, a cigarette manufacturer, and a declaration requiring it to pay his medical expenses arising from conditions suffered by him as a result of smoking cigarettes manufactured by the respondent. The case comes into the Federal Court because the appellant based his claim upon s 52 of the Trade Practices Act 1974 (Cth) ("the Act"). In substance, he alleged that the respondent failed to warn him of the risk of injury from smoking its cigarettes. He claims that he should have been given the warning in 1972 or 1973. 2 The respondent filed an application in which it sought, inter alia, that the proceeding be dismissed pursuant to O20 r2 of the rules of Court. It claimed that the proceeding did not disclose any cause of action under the Act and that it was frivolous and vexatious. 3 In a carefully considered judgment, the primary judge held that the proceeding was bound to fail. Her Honour specifically held at [29] that the claim of contravention of s52 "must be regarded as hopeless". The primary judge also observed at [35] that: "…the amended statement of claim failed to allege any causal link between the conduct complained of and the damage Mr Lindsey allegedly suffered." 4 Additionally, her Honour noted that the alleged acts and omissions of the respondent, the subject of the appellant's complaints, occurred prior to the commencement of the Act. Further, the primary judge considered that the appellant ought not be permitted to re-plead. Her Honour said at [40]: "…it seems to me that [the appellant's] claim is incapable of being turned into a tenable one." 5 Although the primary judge's judgment finally disposed of the proceeding, on the current state of authority it is to be regarded as an interlocutory one: see Re Luck (2003) 203 ALR 1. Consequently an appeal lies only by leave: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 6 The primary judge published her reasons for judgment on 21 January 2004. Order 52 r10(1) of the rules of Court provides: "An application for leave to appeal from an interlocutory judgment of the Court may be made orally to the judge who has pronounced the judgment at the time of its pronouncement." 7 The appellant did not apply to the primary judge for leave to appeal from her interlocutory judgment at the time of its pronouncement. 8 Order 52 r10(2) provides: "(a) Where an application has not been made in accordance with sub-rule (1), an application may be made by motion on notice to a single Judge or to a Full Court, and the provisions of Order 19 shall apply. (b) The notice shall be filed and served within seven days from the pronouncement of the interlocutory judgment from which leave to appeal is sought or within such further time as the Court or a Judge may allow." 9 The time within which the appellant was required to apply for leave to appeal from the interlocutory judgment of the primary judge expired on 29 January 2004. 10 Without applying for leave to appeal, the appellant filed a notice of appeal on 22 January 2004. 11 On 5 February 2004, the respondent filed a motion seeking, pursuant to O52 r18(1), that the appeal be dismissed as incompetent on two grounds. First, the appellant had not obtained leave to appeal. Second, the notice of appeal disclosed no grounds of appeal. 12 Order 52 r18(1) provides: "A respondent may move on notice at any time for an order dismissing an appeal as incompetent." 13 Order 52 r18(2) provides: "Upon the hearing of the motion, the burden of establishing the competency of the appeal is on the appellant." 14 In accordance with the order of the Chief Justice, made on 10 February 2004, the appellant filed affidavits in opposition to the respondent's O52 r18(1) motion. Those affidavits were filed on 17 and 20 February 2004 respectively. 15 At paragraph 11 of his first affidavit the appellant stated that he did not apply to her Honour for leave to appeal as he considered doing so to be a "fruitless or a futile exercise". At paragraph 12 the appellant said: "No Judge or Justice likes there (sic) decisions being Appealed and scrutinised." 16 At paragraph 14, the appellant said that he was under the impression that he was entitled to appeal as of right. At paragraph 16, he said that he sought the leave of the Chief Justice to make an oral motion for leave to appeal on 10 February 2004. 17 A reading of the transcript of the callover hearing lends support to that claim, but the matter did not rise beyond being barely raised. 18 The second affidavit did not address the issue of leave to appeal. 19 The second ground relied upon by the respondent in its motion is supported by the proposition that the notice of appeal is "largely incomprehensible and is untenable." 20 Two grounds of appeal are set out in the notice of appeal. The first is: "1. TAKE NOTICE that the Appellant Appeals from the Whole of the decisions of Her Honour KENNY J, given on the 21st Day of JANUARY, 2004, at MELBOURNE. The second is: 2. GROUNDS: IN relation to the Respondent's FIRST MOTION dated 15/08/2003, filed the 18/08/2003, 'That as NO EVIDENCE in reference to the Literary Meaning of FRIVOLITY before the Court in connexion to the proceeding generally and or in relation to any claim for relief was led, before Her Honour KENNY J on the 08/10/2003, KENNY J was incompetant (sic) and erred in Law by dismissing the Appellant's Proceeding V408 of 2003, before the Court of First Instance usurping the Trial Judge's position circumventing the precedent Golden Rule of Thumb as adhered too (sic) and contained within the Verbiage of Commentary by KENNY J's Peer's (sic), Order 20 Rule 2(1) pursuant the Australian High Court and Federal Court of Australia Rules of Practice and Procedure which Governs this Jurisdiction of federal Law by not allowing the Applicant to Proceed to Trial against the Respondent, undermining Public Trust in the Administering of Judicature (Judicial) function and or functioning. GROUNDS: IN relation to the Respondent's SECOND MOTION dated 15/03/2003, filed the 18/08/2003, 'That if Her Honour KENNY J had not failed in her duty to maintain the integrity and sanctity of her Peer's (sic) precedent Golden Rule of thumb as adhered too (sic) and contained within the Verbiage of Commentary, Order 20 Rule 2(1) pursuant the Australian High Court and Federal Court of Australia Rules of Practice and Procedure which Governs this Jurisdiction of Federal Law, questions in issue between the parties in the Appellant's Proceeding V408 of 2003, before the Court of First Instance could have been corrected through the natural process of the Court." 21 A reading of the grounds of appeal supports the first aspect of the respondent's argument. The grounds are indeed incomprehensible. They also are untenable in the sense that they do not identify any appellable error in the primary judge's judgment. 22 It must be remembered that O52 r18(2) places the onus on the appellant to establish why his appeal is competent. He has failed to do so. Accordingly, the second ground of the respondent's motion has been made out. Additionally, the first ground is established given that there is no material before the Court, in accordance with O52 r4(2) of the rules of Court, which gives a reason for the granting of leave or sets out the nature of the case and the questions involved in any reasonably intelligible way. 23 The respondent's motion should be granted, with costs. The Court will order as follows: 1. The appeal be dismissed as incompetent. 2. The appellant pay the respondent's costs of the appeal. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam, Marshall and Finkelstein. Associate: Dated: 1 March 2004 The appellant appeared for himself. Counsel for the Respondent: Mr S O'Meara Solicitor for the Respondent: Allens Arthur Robinson Date of Hearing: 26 February 2004 Date of Judgment: 26 February 2004