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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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• Lawyer revealed as smoking source  

A FORMER senior partner at Clayton Utz, Christopher Dale, has outed himself as the source of a damaging leak of secret internal documents published in The Sunday Age late last year.

The leak sparked an investigation by the Director of Public Prosecutions over whether criminal charges should be laid against a former high-profile Clayton Utz lawyer, as well as inquiries by legal services commissioners in Victoria and NSW.

Mr Dale said he leaked hundreds of pages of a secret Clayton Utz investigation because he believed there had been a miscarriage of justice in the 2002 case involving lung cancer victim Rolah McCabe.

"I believed there may have been a fraud committed on the Supreme Court of Victoria and that a full investigation was required," he said.

Mr Dale is a former president of the Law Institute of Victoria, a former board member of Clayton Utz and a member of the Victorian Supreme Court's rules committee.

He was expelled from Clayton Utz in August last year, after more than 19 years with the firm, but denied this was behind his decision to leak the documents to The Sunday Age.

"It's quite plain there's a great sense of miscarriage of justice in the McCabe camp and I might say some basis to reopen the matter. So what do you do? Do you just sit on that? . . .

Mr Dale, a commercial and insolvency lawyer, was appointed in 2002 to conduct an internal investigation into Clayton Utz lawyers who had acted for British American Tobacco when it was sued by mother of four Mrs McCabe.

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It's quite plain there's a great sense of miscarriage of justice in the McCabe camp and I might say some basis to reopen the matter. So what do you do? Do you just sit on that? Do you just ignore it all? It would have been a lot easier for me if I'd just remained quiet about this. It's moved way beyond any sense of payback or revenge. I was motivated by my conscience - I could not sit idly by.
FORMER senior partner at Clayton Utz, Christopher Dale, who has outed himself as the source of a damaging leak of secret internal documents published in The Sunday Age late last year.

• The Insider 

As Christopher Dale sees it, his slide from grace within Clayton Utz resulted from his attempts to uphold principles imbued from an early age in a family rich in legal tradition and a sense of doing the right thing.

Yet when he was sacked after 19 years at Clayton Utz, he found himself utterly alone. "I think when you examine the betrayal, no one came to my rescue, no one," he says. "I was the partner in the Melbourne office who was the first person that people came to if there was a problem. No one came to my rescue — now what does that tell you?"

Dale, 52, insists revenge was not the motive for his leaking of documents that implicated two senior partners in serious wrongdoing in the controversial Rolah McCabe tobacco case. "Have I let go? The answer is I have," he says.

Dale's journey from senior partner and board member at Clayton Utz to whistleblower was traumatic and affected his health, at least temporarily, but was one that he felt compelled to take. . . .

In response to Eames' damning findings, Clayton Utz's board ordered an internal inquiry.

By the time the appeal court overturned the finding, Dale had already led an investigation into the behaviour in the case of two senior partners, Richard Travers and Glenn Eggleton. The investigation found that they had engaged in serious professional misconduct. Further, Eggleton had potentially perjured himself. . . .

Months earlier, with an inkling of what lay ahead, Dale had removed copies of the secret reports on Travers and Eggleton from the office and kept them in a secret location.

The decision to make them public was difficult and legally fraught. There were many sleepless nights. In the end he decided he could not sit on the explosive reports.

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DPP probing law firm over tobacco case 

The Victorian Department of Public Prosecutions (DPP) is investigating claims of criminal conduct against lawyers who acted for British American Tobacco (BAT) in the case of the late Rolah McCabe.

The claims against solicitors and partners at law firm Clayton Utz were made following an internal investigation by the company's management.

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Letter to Fagan (PDF) 

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Travers' letter (PDF) 

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