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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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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.
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.
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.
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.
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.
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.
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".
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.
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.
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.
Conclusion
74. In all the circumstances, it is clear that the conduct of Travers amounted to serious professional misconduct. Accordingly a Decision under sub-clause 16. l(a)(i) of the Partnership Agreement is appropriate and necessary. . . .
91. At the Board Meeting on June 2002 the Board should make a Decision requiring Travers to leave the Partnership.
VICTORIAN police have sought advice from the Office of Public Prosecutions over allegations of document destruction and tainted justice in Rolah McCabe's landmark anti-smoking court case.
And the NSW fraud squad, which is investigating the same allegations, has spoken to McCabe family lawyers Slater & Gordon and The Sunday Age.
The police probe is the fourth into the actions of British American Tobacco Australia Services and its former lawyers, Clayton Utz, in the McCabe case.
Today, The Sunday Age posts on the internet controversial Clayton Utz documents that have sparked three major investigations, including one by the Director of Public Prosecutions over possible criminal charges.
NSW police are investigating allegations under sections of the Crimes Act that make it illegal to destroy anything knowing that it could be required as evidence in a judicial proceeding.
The Victorian Supreme Court found in 2002 that internal British American Tobacco documents had been destroyed, denying justice to lung cancer victim Mrs McCabe.
CLAYTON Utz, the corporate law firm that defended British American Tobacco against cancer victim Rolah McCabe, may be stripped of its multimillion-dollar position on the list of firms entitled to work for the State Government.
Attorney-General Rob Hulls has written to the unit that manages the Legal Services Panel, a list of 10 firms, asking it to investigate whether Clayton Utz's position on the panel should be "reconsidered in light of … serious allegations" against two former partners of the firm.
The partners were found by an internal inquiry to have engaged in misconduct and potential perjury while acting for British American Tobacco.
The contents of the report were revealed in The Sunday Age in October. On Wednesday, Mr Hulls referred the report to the Victorian Director of Public Prosecutions for investigation.
DESPITE being cleared of wrongdoing in the disastrous Rolah McCabe tobacco litigation, former Clayton Utz lawyer Richard Travers looks set to pay an enormous price for his involvement with big tobacco.
Mr Travers has already lost a partnership in the law firm founded by his family. And he will now be subjected to a second inquiry that looks set to ignore the rule against double jeopardy.
That inquiry, which was called this week, will cover exactly the same issues that were thrown out in 2003 when Victoria's former legal ombudsman Kate Hamond investigated the conduct of Clayton Utz lawyers in the McCabe case. . . .
But doubts have now emerged about the real purpose of the material that criticises Mr Travers. Clayton Utz has described the Travers material as "a preliminary internal review" that had been prepared without information or comment from the people concerned.
It was drawn up at the height of the media frenzy triggered by the publication in April 2002 of the Eames judgment and before the exoneration by the Court of Appeal in December that year, and the legal ombudsman the following year.
A spokeswoman for the firm said there was "nothing new" in the material that had been supplied to Mr Hulls.
ELEANOR HALL: One of the country's most prestigious law firms is facing a criminal investigation by the Victorian Director of Public Prosecutions. Clayton Utz is alleged to have engaged in criminal conduct during the landmark 2002 tobacco litigation brought by the late Rolah McCabe.
Victorian Attorney General Rob Hulls has also briefed the Federal Attorney-General and several state and territory Attorneys-General about new evidence, which emerged seven weeks ago.