FEDERAL COURT OF AUSTRALIA Lindsey v Philip Morris Ltd [2004] FCA 797 PRACTICE AND PROCEDURE – application for dismissal of proceeding as an abuse of process – applicant bringing substantially the same proceeding in the Federal Court and in Supreme Court of Victoria – respondent seeking order under O 21 r 2 – whether bringing one application in the Federal Court and appealing from an adverse judgment constitutes "habitually and persistently" instituting a proceeding WORDS AND PHRASES – "habitually and consistently" Federal Court Rules, O 20 r 2, O 21 r 2 Lindsey v Philip Morris Ltd [2004] FCAFC 40 cited DAVID JAMES LINDSEY v PHILIP MORRIS LTD NO V129 OF 2004 HEEREY J 16 JUNE 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V129 OF 2004 BETWEEN: DAVID JAMES LINDSEY APPLICANT AND: PHILIP MORRIS LTD RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 16 JUNE 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Pursuant to O 20 r 2 of the Federal Court Rules, the proceeding be dismissed. 2. The motion for security for costs filed on 25 May 2002, be adjourned sine die. 3. There be no order as to the costs of the motion for security for costs. 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 25 May 2004. 5. Leave to appeal is refused. 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 V129 OF 2004 BETWEEN: DAVID JAMES LINDSEY APPLICANT AND: PHILIP MORRIS LTD RESPONDENT JUDGE: HEEREY J DATE: 16 JUNE 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant commenced this proceeding on 12 February 2004 and filed a statement of claim on that day. On 15 June 2004 he filed a fresh statement of claim, without leave, as he was entitled to do under the Federal Court Rules. 2 On 25 March 2004 the respondent filed two notices of motion. The first sought orders pursuant to O 20 r 2(1)(a), (b) and (c), or the Court's implied powers, that 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. 3 The motion also sought an order pursuant to O 21 r 2 that the applicant shall not, without leave of the court, institute any proceeding against the respondent in the court and that the proceedings shall not be continued by the applicant without leave of the court. 4 The second notice of motion seeks, pursuant to O 28 r 3, an order that the proceeding be stayed pending the payment into the court by the applicant of the sum of $45,000 as security for payment of the respondent's costs and that in the event the applicant fails to pay that sum by a date and time to be fixed, the proceedings stand dismissed. 5 The applicant complains of injuries caused by smoking the respondent's Marlboro cigarettes. Substantially the same claim was brought in this Court last year and it was the subject of a summary judgment application which was heard by Kenny J. On 21 January 2004 her Honour gave judgment ordered that the proceeding be dismissed: Lindsey v Philip Morris Limited [2004] FCA 9. 6 Her Honour noted that the applicant, having been declared a vexatious litigant in the Supreme Court of Victoria, had on three occasions unsuccessfully applied for leave to bring proceedings against the present respondent in that court. Details of those applications are set out at [44]-[46] of her Honour's judgment. The applicant attempted to appeal against her Honour's judgment. On 26 February 2004 that appeal was dismissed as incompetent: Lindsey v Philip Morris Limited [2004] FCAFC 40. The Full Court held that her Honour's order was interlocutory and no leave had been obtained as required by O 52 r 10(2). Their Honours further said at [22] that there was no material before the 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 intelligent way." 7 The present motions were heard on 31 May and adjourned part-heard until today. Counsel for the respondent addressed the new statement of claim and correctly pointed out that there were manifest defects in it. It proceeds on the assumption that the Trade Practices Act 1974 (Cth) (TPA) creates some general duty of care. Further, there was no pleading in respect of the alleged failure to warn, what warnings the respondent should have given and what the applicant would have done had those warnings been given. 8 Insofar as the statement of claim relies on the allegation of unconscionable conduct contrary to s 51AA of the TPA, as counsel pointed out, that section only came into operation in 1992, which on the applicant's own account was after he had ceased smoking Marlboro cigarettes, the only product apparently of which he complains in this proceeding. 9 However, notwithstanding those defects, I think there is a more fundamental reason why this proceeding should be dismissed as an abuse of process. The applicant has sought remedies for his complaints in courts of competent jurisdiction. He will not accept the decision of those courts. He simply brings proceedings again and again. This is self-evidently an abuse of process of a serious kind and warrants dismissal. As Kenny J said at [47], it did not appear to her that the applicant's case was any better in this Court than in the Supreme Court. 10 Turning to the O 21 r 2 application, the terms of that rule are as follows: "2. Vexatious proceeding against a person Where any person (in this rule called the vexatious litigant) habitually and persistently and without any reasonable round institutes a vexatious proceeding against any person (in this rule called the person aggrieved) in the Court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any proceeding against the person aggrieved in the Court and that any proceeding instituted by the vexatious litigant against the person aggrieved in the Court before the making of the order shall not be continued by him without leave of the Court." 11 It should be noted that, in contrast to O 21 r 1, the vexatious proceedings referred to are proceedings in the Federal Court. While I accept that within the meaning of the rules an appeal is a separate proceeding from a proceeding at first instance, I do not think the bringing of one proceeding in this court and appealing from an adverse judgment would constitute "habitually and persistently" instituting proceedings within the ordinary meaning of those words in the context of O 21 r 2. 12 There remains O 21 r 1, which provides as follows: "1. Vexatious litigant (1) If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian Court (whether against the same person or against different persons), the Court may order: (a) that any proceeding instituted by the person may not be continued without leave of the Court; and (b) that the person may not institute a proceeding without leave of the Court. (2) An order under this rule may be made: (a) on the Court's own motion; or (b) on the application of the Attorney-General or Solicitor-General of the Commonwealth or of a State or Territory; or (c) on the application of the Registrar." 13 The respondent does not have standing to bring an application under that rule. I raised with counsel for the respondent the question whether the respondent would invite me to make an order of the Court's own motion. Counsel did extend such an invitation, but on reflection I think it would deny the applicant procedural fairness if I were to invoke this rule today. 14 However, I note that the respondent's solicitors have been in correspondence with the Commonwealth Attorney-General, correspondence which has been of course disclosed to the applicant. The Attorney-General, in a letter dated 5 May 2004 to the respondent's solicitors, referred to the present motions and indicated that in the circumstances he felt it would be inappropriate for him to make an application to the court under O 21 r 1 at the present time. 15 The Attorney-General concluded by saying that he and the Solicitor-General would appreciate being informed of the outcome of the respondent's application under O 21 r 2 and any related developments. I think all I can or should say is that this seems an appropriate matter to be referred to the Attorney-General for his consideration as to whether an application should be made under O 21 r 1. 16 The only other matter is the notice of motion seeking security for costs. That now becomes unnecessary and, as did Kenny J, I will simply adjourn that sine die. 17 So, the orders of the court are that: 1. Pursuant to O 20 r 2 of the Federal Court Rules, the proceeding be dismissed. 2. The motion for security for costs, notice of which was filed on 25 May 2002, be adjourned sine die. 3. There be no order as to the costs of the motion for security for costs. 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 25 May 2004. 18 The applicant seeks leave to appeal from the decision I have given today pursuant to the respondent's motion, that the proceeding be dismissed. It is clear that leave is required. As the Full Court said on the purported appeal from KennyJ's judgment already referred to, [2004] FCAFC 40 at [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 section 24(1A) of the Federal Court of Australia Act 1976 Commonwealth)." 19 The applicant applies orally, pursuant to O 52 r 10(1). In support of his application he said that my decision was "biased, wrong and unconstitutional". He said the decision was not a decision of a judge who maintained judicial independence, because it made mention of the decision of Kenny J and her Honour's words have "influenced" me to some degree. He also said that an appeal would not be an abuse of process because it is "part of the process". 20 I refuse leave. I do not think an appeal would have any reasonable prospects of success. The main complaint – that I improperly had regard to the decision of Kenny J – is self-evidently without merit. It was obviously necessary to consider the judgment of another judge bearing on the same matter, more particularly when the essence of the abuse of process was the applicant's own disregard of that decision. So the application for leave to appeal is refused. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 23 June 2004 Counsel for the Applicant: In person Counsel for the Respondent: S O'Meara Solicitor for the Respondent: Allens Arthur Robinson Date of Hearing: 16 June 2004 Date of Judgment: 16 June 2004