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• British American Tobacco Australia Services Ltd v Laurie & Ors [2009] NSWCA 414  

HEARING DATE(S): 25 November 2009

JUDGMENT DATE:

17 December 2009

JUDGMENT OF: Allsop P at 1; Tobias JA at 15; Basten JA at 121 . . .

31 Paragraph 13 contained the following statement by his Honour upon which BATAS placed particular reliance (omitting citations):

“These allegations are not new. They were the subject of evidence given in McCabe v British American Tobacco Australia Services Ltd and reviewed by the Victorian Court of Appeal in British American Tobacco Australia Services Ltd v Cowell. They were the subject of statements served by Brambles upon BATAS and tendered in support of the present application.”

I interpose that BATAS submitted that in this paragraph his Honour was stating that BATAS had been on notice of the relevant allegations since 2002 and, therefore, had had plenty of time in which to respond to them if it was able and wished to do so.

32 At [15] his Honour referred to the reliance by Brambles on evidence with respect to the events that occurred during the operation of what was referred to in evidence as BATAS’ Document Management Policy as it existed between 1985 and 1992 and to further events that occurred during the operation of a similar Document Management Policy operating in 1993.

33 The effect of the amendment by Brambles of its cross-claim whereby it asserted the allegations summarised by his Honour at [12] was that those allegations required further discovery by BATAS. In support of its application for further discovery Brambles tendered before his Honour the evidence of Mr Gulson, who was the Company Secretary and in-house solicitor to BATAS between October 1989 and November or December 1990 at a time it was known as W D & H O Wills Australia Limited (Wills).

34 At [19] his Honour noted that the first of Mr Gulson’s statements comprised a transcript of the evidence given by him in the matter of United States of America v Philip Morris USA Inc (the Philip Morris proceedings), extracts of which he then set out adding his own emphasis to portions of Mr Gulson’s answers. Those answers, and particularly the parts of them emphasised by his Honour, constituted responses that were adverse to the interests of BATAS and which, if accepted, tended to establish that it had adopted a Document Retention Policy intended to destroy or otherwise make undiscoverable documents that would be harmful to BATAS in any tobacco litigation. I give but one example:

“(Page 18)Q: Other than the destruction of documents, are you aware of any other aspect of the Document Retention Policy?

A: Yes. Another important component of the Policy was routing of documents through lawyers for the purpose of ‘privileging’ the documents, that some documents should include a notation to the effect of ‘for the purpose of legal advice’ and be routed through a lawyer, so that a document which would not otherwise attract privilege would now attract privilege.

(Page 19)A: The Document Retention Policy was a contrivance designed to eliminate potentially damaging documents while claiming an innocent ‘housekeeping’ intent. While I was uncertain about whether the ruse was legal or not, I knew that it was a ruse and that made me uncomfortable. The policy didn’t pass the smell test. The whole purpose was to keep evidence out of the courts.” . . .

149 In the present case, it is not contended that Curtis J has pre-judged the issue or is in fact unwilling or unable to consider with an open mind such material and submissions as may be tendered by the applicant for further consideration. That his Honour may, absent fresh material or differently formulated submissions reach the same conclusion, adverse to the applicant, would demonstrate consistency of approach, not pre-judgment. His Honour expressed confidence in his ability to deal with the matter afresh on the materials presented to him. There is, no doubt, a chance that, even if unconsciously, knowledge of one’s own previously formulated opinion could inhibit a fair consideration of fresh material. In my view that chance is remote and does not rise to a sufficient level to constitute a reasonable apprehension of pre-judgment. Given the appropriate understanding of the test and the underlying policy considerations identified above, I can formulate no reasonable basis for concluding that the fair-minded lay observer would reach a different conclusion. Rather, if the applicant were to succeed in the present application, there would be a real risk of a diminution in public confidence in the administration of justice, due to the perception that one litigant, facing an adverse outcome in the absence of persuasive material which would properly permit a different conclusion to be reached, has manipulated the system in the hope of obtaining a more favourable outcome from a different judge.

150 When the reasoning of Tobias JA is viewed against the statutory scheme described above and by reference to the reasons of the Tribunal in refusing the recusal application, his Honour’s conclusion that prohibition should be refused is, in my view, strengthened. I accept his Honour’s analysis and for these further reasons would also refuse the relief sought. The applicant must pay the respondent’s costs of both proceedings in this Court.

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Tobacco company in bid to remove judge 

BRITISH American Tobacco has asked the NSW Court of Appeal to remove a Dust Diseases Tribunal judge from hearing a landmark claim that smoking and asbestos jointly caused lung cancer.

The tobacco company argued yesterday that Judge Jim Curtis should be disqualified because of a pre-trial ruling he made in a similar case in 2006 about its destruction of documents.

The controversial ruling was in an asbestos-tobacco compensation claim brought by a Wollongong motor mechanic Allan Mowbray, which settled before trial.

It related to British American Tobacco's so-called ''document-retention policy'' first raised in a tobacco compensation case brought by a Melbourne smoker, Rolah McCabe.

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• 'Arrogant' BAT tried to remove a judge  

British American Tobacco, one of the UK's most powerful companies, has been accused of "breathtaking arrogance" after one of its subsidiaries pushed for the removal of a judge hearing a cancer compensation lawsuit being brought against it.

The company, which each year produces 715 billion cigarettes in 41 countries and employs more than 50,000 people, claimed an Australian judge, Jim Curtis, would not have "an impartial and unprejudiced mind'' over the case brought by Claudia Jean Laurie, the widow of a smoker.

The company, which last year made global profits of almost £2.7bn, said this was because in a separate case in 2006 Curtis had branded BAT Australia "dishonest" for its role in the destruction of documents relating to the potentially harmful effects of its products.

Curtis said the company destroyed documents in anticipation of legal action and "dishonestly concealed this purpose by pretence of a rational non-selective housekeeping policy".

A former senior BAT executive, Fred Gulson, admitted the purpose of the policy was "to get rid of all the sensitive documents� under the guise of an innocent housekeeping arrangement".

BAT Australia's application to have Curtis dismissed in the latest case has been rejected by two judges. . . .

The company states on its website: "The tobacco industry has a strong record of winning these cases and we, along with many analysts, believe this will continue, although it's always possible that sometime, somewhere, a smoking and health case will be lost."

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• Cancer case: judge stays  

A NSW Court of Appeal judge has found British American Tobacco caused ''a real risk of a diminution of public confidence in the administration of justice'' by attempting to remove a judge hearing a cancer compensation case against it.

Upholding the challenge would have created a public perception that the company had ''manipulated the system in the hope of obtaining a more favourable outcome from a different judge'', said Justice John Basten. British American Tobacco wanted Judge Jim Curtis disqualified from hearing a case in the Dust Diseases Tribunal seeking compensation for lung cancer caused by both asbestos and tobacco.

The company claimed Judge Curtis could not bring ''an impartial and unprejudiced mind'' because in a different case in 2006 he made a pre-trial finding of dishonesty by British American Tobacco for concealing why it destroyed documents relating to the toxicity of its products. . . .

Similar issues about destruction of documents have been pleaded in a claim before Judge Curtis seeking compensation for the terminal illness of Donald Laurie, a boilermaker who died in 2006, aged 68. . . .

Ms Laurie has foreshadowed calling as a witness British American Tobacco Australia Services' former in-house lawyer, Fred Gulson, whose evidence was central to the 2006 ruling.

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• Tobacco giant bid to oust judge 

THE NSW Court of Appeal has been asked by British American Tobacco to remove a Dust Diseases Tribunal judge from hearing a landmark claim that smoking and asbestos jointly caused lung cancer.

The company argued yesterday that Judge Jim Curtis should be disqualified because of a pre-trial ruling he made in a similar case in 2006 about its destruction of documents.

The ruling was in an asbestos-tobacco compensation claim brought by a Wollongong motor mechanic, Allan Mowbray, which settled before trial.

It related to British American Tobacco's so-called ''document retention policy'' first raised in a tobacco compensation case brought by a Melbourne smoker, Rolah McCabe.

Judge Curtis denied British American Tobacco the benefits of legal professional privilege in the Mowbray case, saying the company had destroyed prejudicial documents for the purpose of suppressing evidence in anticipated litigation and that it ''dishonestly concealed this purpose by pretence of a rational non-selective housekeeping policy''.

John Sackar, QC, for British American Tobacco, said yesterday that Judge Curtis would have to ''hear the matter all over again'' in a case he began hearing in March 2006.

The plaintiff, Donald Laurie, died at the age of 68 in May 2006 and his widow, Claudia Jean Laurie, has continued the case on behalf of her husband's estate.

Ms Laurie has foreshadowed calling as a witness Fred Gulson, the former in-house lawyer for British American Tobacco Australia Services.

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• Tobacco giant loses fight over documents  

The family of Victorian woman that won, then lost, a damages action against the tobacco multi-national she blamed for her lung cancer is a step closer to reopening her case.

Shortly before she died in 2002, Rolah McCabe, 53, sued British American Tobacco Australia Services (BATAS) for damages in a case won after her death when a Victorian Supreme Court case awarded damages of $700,000.

But the decision was overturned by the Court of Appeal in December 2002, and Ms McCabe's estate was ordered to pay more than $2 million of BATAS' legal costs - a demand that would bankrupt her estate.

In July this year Justice David Byrne cleared the way for the McCabe family and law firm Slater and Gordon to use hundreds of confidential BATAS documents in a bid to reopen a case against the tobacco company. . . .

One of the disputed documents was an internal inquiry that found two of law firm Clayton Utz's partners engaged in serious misconduct in order to defeat Mrs McCabe's original claim.

Victorian Court of Appeal judges Alex Chernov, Geoffrey Nettle and Marilyn Warren ruled on Friday that the McCabe family's lawyers could use the documents.

"We consider that BATAS would suffer no relevant prejudice if his Honour's (Justice Byrne) orders were to stand such that the respondents (McCabe family) could use the BATAS information for the purpose of preparing their defence in the proceeding,"

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• Top lawyers face scrutiny  

VICTORIA'S top prosecutor has pressed the Australian Crime Commission to investigate potential criminal conduct by cigarette maker British American Tobacco and lawyers at prestigious legal firm Clayton Utz during the Rolah McCabe case.

In one of his last acts as the state's Director of Public Prosecutions, Paul Coghlan, QC, has referred serious allegations of criminal behaviour by the tobacco giant and its former Australian lawyers, Clayton Utz, to the nation's top crime-fighting body for a special investigation.

In a letter to Attorney-General Rob Hulls, Mr Coghlan refers to serious allegations including perjury and conspiracy to pervert the course of justice by "a number of parties involved with British American Tobacco".

The DPP's unprecedented move follows revelations in The Sunday Age last October of an internal investigation conducted by Clayton Utz after its client, BAT, lost a damages action brought by lung cancer victim Rolah McCabe in 2002.

The investigation, by a senior partner of the firm, Christopher Dale, found that two Clayton Utz lawyers in the case, Glenn Eggleton and Richard Travers, had engaged in serious professional misconduct.

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• BIRNBAUER: Smoking gun aimed at Big Tobacco  

British American Tobacco and its former lawyers, Clayton Utz, could not have anticipated the latest sensational twist in the long-running McCabe drama. It will hit them like a bomb.

Victoria's Director of Public Prosecutions, after an eight- month investigation, has strongly recommended the most thorough scrutiny of potential criminality available in Australia -- a special investigation by the powerful Australian Crime Commission.

While DPP Paul Coghlan, QC, initially set out to examine the behaviour of the Clayton Utz lawyers who defended BAT in a damages case brought by lung cancer victim Rolah McCabe, he is now recommending a full inquiry not only into the lawyers, but BAT's conduct in the McCabe case and other previous product liability suits against it. . . .

If the crime commission launches a special investigation it will have coercive powers it can use to question witnesses and obtain documents, and the wizardry of clever, articulate and wealthy lawyers won't count for much.

The DPP's move is the latest stake in the heart of the Victorian Court of Appeal's decision in December 2002 to overturn Rolah McCabe's historic victory. . . .

The significance of referral to the Australian Crime Commission is that the commission has the artillery to cut through the legal roadblocks BAT and Corrs are throwing up. Mr Coghlan made particular mention of the commission's coercive powers and the penalty of imprisonment for noncompliance.

The ACC's board now has to consider whether to launch a special investigation. The quickest path to justice for the McCabe children, and a full and proper investigation of BAT and Clayton Utz's document policies, is for the investigation to begin as soon as possible.

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• Tobacco payment postponed 

TOBACCO giant British American Tobacco has agreed to curb its demands for the family of the late Rolah McCabe to pay it more than $2 million until after the Victorian Court of Appeal hears another step in the controversial six-year-old negligence case.

BAT wants to appeal a decision of Justice David Byrne, who last month cleared the way for the McCabe family and law firm Slater & Gordon to use hundreds of confidential BAT documents in a bid to reopen claims against the tobacco company.

The Court of Appeal yesterday made an unusual decision to hear BAT's application for leave to appeal at the same time as it hears the actual appeal. Appeals court judges Alex Chernov and Marcia Neave directed the court registrar to speed up the hearing, to be heard later this year, and make the case a priority.

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• Justice closer for McCabe's family 

THE family of lung cancer victim Rolah McCabe has welcomed a surprise NSW court ruling to transfer a case launched by British American Tobacco back to Victoria.

The family believes the decision will help in its long fight for justice. Mrs McCabe's daughter, Roxanne Cowell, said: "It's all very exciting."

"My family are very pleased that the case is returning to Victoria because it was in the Victorian court that the wrong was done to my mother," Mrs Cowell said. . . .

BAT had taken legal action in NSW instead of Victoria to try to stop a secret internal report by its former lawyers, Clayton Utz, which had been leaked to The Sunday Age, from being used in future lawsuits.

The Sunday Age last year revealed that the damning internal report found two of Clayton Utz's senior lawyers had engaged in serious professional misconduct in the way they handled the McCabe case when acting for BAT.

In what is seen by the McCabe family and their lawyers, Slater & Gordon, as a significant blow to BAT, NSW Supreme Court judge Paul Brereton ruled on Friday that the case should be transferred to Melbourne.

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Smoke-case law firm faces state cash battle 

NATIONAL law firm Clayton Utz faces losing millions of dollars in work from the Victorian Government in the wake of the revelations about its role in the Rolah McCabe tobacco case.

The secretary of the Department of Justice, Penny Armytage, wrote to Clayton Utz earlier this month asking why it should not be removed from the panel of law firms that are entitled to work for the State Government.

The list includes Australia's biggest law firms and is regarded as highly lucrative. Firms on the panel shared $35 million in State Government work in 2004-05.

Ms Armytage is believed to have given Clayton Utz until the end of February to respond. A spokeswoman for Clayton Utz said it was not appropriate to comment on the matter.

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Judge stands down in tobacco inquiry 

A JUDGE who represented British American Tobacco while he was a barrister has agreed to disqualify himself from presiding over an inquiry into alleged iniquity by the tobacco group.

NSW Supreme Court judge Paul Brereton was to hear a case pitting tobacco group BAT against law firm Slater & Gordon and members of the Fairfax group (owner of The Age).

BAT wants to stop Slater & Gordon from using a leaked report by the tobacco group's former lawyers, Clayton Utz, to reopen the Rolah McCabe case.

The Sunday Age has published excerpts of the report.

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• Brereton backs off tobacco lawsuit  

LAW firm Slater & Gordon has succeeded in having a judge disqualify himself from hearing a case relating to the re-opening of the Rolah McCabe tobacco litigation.

NSW Supreme Court judge Paul Brereton said he did not believe he was biased, but he had previously advised British American Tobacco when he was a barrister, and a lay person might think he had a bias. . . .

Slater & Gordon want to re-open the case, by arguing that the Clayton Utz documents reveal an "iniquity" in BATA's document-destruction policy that overcomes the defence of legal professional privilege.

And it wants the matter to be transferred to Victoria.

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• Whistleblower draws judge's ire on evidence  

TOBACCO whistleblower Fred Gulson has been severely criticised by a Federal Court judge over his role in a bitter fallout with partners in a tea-tree oil business.

Justice Steven Rares was highly critical of Mr Gulson's evidence. He said he would not accept it unless it was corroborated independently on any issue between Mr Gulson and other witnesses. He found Mr Gulson had been "deliberately misleading or unreliable".

The judge said Mr Gulson exhibited erratic behaviour because of a psychiatric condition about the time he summarily sacked his company's marketing manager, Jim Gobert. . . .

In the case before Justice Rares, Mr Gulson and others were sued by John Bax, a former partner in the BRG Corporation, which was involved in the production, distribution and sale of tea-tree oil and products. Mr Bax refused to work with Mr Gulson after Mr Gobert's sacking.

A witness told the hearing that Mr Gulson had made loud and racially based comments in a restaurant about a woman in Muslim dress, saying she and others looked like terrorists. He began smoking a large cigar in the non-smoking area and refused to put it out.

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• Thrust, parry as law firm slams ex-partner 

LAW firm Clayton Utz has launched a stinging attack on Christopher Dale, a former senior partner who leaked sensitive internal documents sparking several inquiries and possible criminal charges.

The firm's chief executive partner, David Fagan, accused Mr Dale of breaching his obligations as a solicitor and former partner of the firm.

It is believed Clayton Utz has threatened to sue Mr Dale for breaching confidentiality.

Mr Fagan said the Victorian Legal Services Board was investigating Mr Dale for "possible ethical breaches and misconduct". . . .

Mr Fagan did not address any of the issues raised in the leaked documents in a statement issued last week. He said that soon after The Sunday Age published details of the firm's documents in October, "we wrote to Mr Dale's solicitor seeking an assurance that Mr Dale was not responsible for the leak".

"In response to that letter, Mr Dale's solicitors denied that Mr Dale had leaked the material."

Mr Dale said Mr Fagan's statement was a "contortion of the facts". Mr Dale said the Legal Services Board was conducting a "mere audit".

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