Jump to full article: New South Wales (NSW) LawLink (au), 2009-12-21
Intro: 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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