Lindsey v Philip Morris Ltd [2004] FCA 797

Lindsey v Philip Morris Ltd [2004] FCA 797

The proceeding was dismissed because the applicant had repeatedly sought to relitigate substantially the same claims against the respondent after decisions of competent courts, and his refusal to accept those decisions and commencement of further proceedings was a serious abuse of process. The O 21 r 2 application was not made out because one Federal Court proceeding and an appeal from an adverse judgment did not amount to habitually and persistently instituting proceedings in the Federal Court. Leave to appeal was refused because the proposed appeal had no reasonable prospects of success.

Jurisdiction
Australia
Judgment Date
16 June 2004
Procedural Posture
Federal Court Proceeding Concerning Alleged Injuries From Smoking Marlboro Cigarettes; Respondent's Motions for Summary Dismissal, Vexatious Proceeding Orders and Security for Costs / Reasons and Orders on Respondent's Motions; Oral Application for Leave to Appeal Refused
Outcome
Proceeding dismissed under O 20 r 2 of the Federal Court Rules; security for costs motion adjourned sine die; no order as to costs of the security for costs motion; applicant ordered to pay respondent's costs of the proceeding; leave to appeal refused.
Legal Topics
['abuse of Process' 'summary Dismissal' 'vexatious Proceedings' 'security for Costs' 'leave to Appeal' 'trade Practices Act Pleading']
['practice and Procedure' 'civil Procedure'] ['abuse of Process' 'summary Dismissal' 'vexatious Proceedings' 'security for Costs' 'leave to Appeal' 'trade Practices Act Pleading']

Case Brief

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Procedural Posture

Federal Court Proceeding Concerning Alleged Injuries From Smoking Marlboro Cigarettes; Respondent's Motions for Summary Dismissal, Vexatious Proceeding Orders and Security for Costs / Reasons and Orders on Respondent's Motions; Oral Application for Leave to Appeal Refused

Legal Issues

  1. 1 ['Whether the proceeding should be dismissed under O 20 r 2 of the Federal Court Rules as disclosing no reasonable cause of action, being frivolous or vexatious, or being an abuse of process.' "Whether the applicant's repeated attempts to pursue substantially the same complaints against the respondent warranted dismissal as an abuse of process." 'Whether bringing one proceeding in the Federal Court and appealing from an adverse judgment constituted habitually and persistently instituting proceedings for O 21 r 2 of the Federal Court Rules.' 'Whether the Court should make an order of its own motion under O 21 r 1 of the Federal Court Rules.' 'Whether security for costs remained necessary after dismissal.' 'Whether leave to appeal should be granted.']

Ratio Decidendi

The proceeding was dismissed because the applicant had repeatedly sought to relitigate substantially the same claims against the respondent after decisions of competent courts, and his refusal to accept those decisions and commencement of further proceedings was a serious abuse of process. The O 21 r 2 application was not made out because one Federal Court proceeding and an appeal from an adverse judgment did not amount to habitually and persistently instituting proceedings in the Federal Court. Leave to appeal was refused because the proposed appeal had no reasonable prospects of success.

Court Disposition

Proceeding dismissed under O 20 r 2 of the Federal Court Rules; security for costs motion adjourned sine die; no order as to costs of the security for costs motion; applicant ordered to pay respondent's costs of the proceeding; leave to appeal refused.

Orders

  • ['Pursuant to O 20 r 2 of the Federal Court Rules, the proceeding be dismissed.' 'The motion for security for costs filed on 25 May 2002, be adjourned sine die.' 'There be no order as to the costs of the motion for security for costs.' "The applicant pay the respondent's costs of the proceeding, including the costs...