Tobacco.org

• Cancer law centre opens to fight big tobacco 

THE name of anti-tobacco litigant Rolah McCabe, who died from lung cancer, will live on in a unique new Melbourne legal centre that will explore using the law as an instrument to fight all cancers.

The McCabe Centre for Law and Cancer will employ up to six lawyers and has backing from the Cancer Council of Victoria, where it will be based.

It has been funded partly though personal donations from the family of the late Mrs McCabe and her solicitors, including leading plaintiff lawyer Peter Gordon.

Mr Gordon, who played a key role in initiating Mrs McCabe's fight against British American Tobacco, said it was important not to cede the law in this area to well-funded corporations.

''The law is a tool of enormous power; if we who fight for cancer control are prepared to leave it only to those who profit from it then they will be the only ones who can exploit it.''

The centre's director, Jonathan Liberman, said that apart from policy development, a major aim would be to advocate for domestic and global cancer control laws. The centre will work with the Swiss-based Union for International Cancer Control

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ACKLAND: End to a 10-year wrestle with smoke 

After a verdict in her favour by the Victorian Supreme Court in April 2002, which awarded damages of close to $700,000, Rolah McCabe died of lung cancer brought on by a long addiction to BAT's products.

The trial judge, Justice Geoffrey Eames, had made some bold decisions. He struck out the tobacco company's defence, finding that it had failed to comply with his orders for discovery and it had conducted a policy of document destruction.

Further, he said BAT's legal firm, Clayton Utz, had been one of the main architects of advice to destroy incriminating documents, and this was done under the Orwellian ''document retention policy''.

Naturally, BAT and Clayton Utz were not going to take that sort of finding lying down and the case moved to the Victorian Court of Appeal, which overturned Eames's findings, set aside the damages and ordered a new trial.

One element of the appeal judges' reasoning was that in circumstances where there was no formal commencement of proceedings it was not improper to destroy documents. However, there must nonetheless have been an expectation that other cases against BAT could soon commence in Australia.

The case was now conducted in the name of Rolah McCabe's daughter, Roxanne Cowell. The High Court refused her special leave to appeal.

In August 2006 there was a dramatic development. The solicitor Christopher Dale told Jack Rush, QC, counsel for McCabe at the trial, he had reports of an investigation by Clayton Utz of its lawyers who worked on BAT's defence.

Dale had been a partner of Clayton Utz and a member of the committee that did the inquiry. . . .

Occasionally, just occasionally, the media can play a positive part in righting a wrong. It did in this case, largely thanks to The Age and The Sunday Age.

The case might also give hope to young lawyers that there is a world beyond the pain of commercial law and that great public law issues allow the possibility of a more creative life.

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• McCabe family reaches settlement with tobacco giant over landmark case  

After a decade before Australia's courts, the landmark battle between the family of lung cancer victim Rolah McCabe and British American Tobacco has come to an end.

A confidential agreement has been struck between the world's second-largest cigarette company and the family of Mrs McCabe, who passed away from lung cancer in 2002 at the age of 51.

No details of that agreement were divulged yesterday, but The Age believes that settlement came at a substantial cost to British American Tobacco.

The smiles of the McCabe family when contrasted with the glum expressions of BAT's legal team certainly indicated there was only one clear winner.

After the court hearing, members of the McCabe family and their lawyers celebrated with champagne at a Melbourne pub.

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Long-running tobacco case over 

The decade-long court case between British American Tobacco (BAT) and the family of lung cancer victim Rolah McCabe has been quietly wrapped up in the Victorian Supreme Court.

In a statement released by BAT, the tobacco company says both parties have agreed to resolve their claims by walking away.

Ms McCabe won a landmark case in 2002 when she became the first person to successfully sue a tobacco company.

She was awarded $700,000 but, on appeal, and two months after she died at age 51, the verdict was overturned and costs were awarded against the McCabe family.

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• Rolah McCabe tobacco lawsuit comes to an end after 11 years 

THE marathon Rolah McCabe tobacco lawsuit finally ended in Melbourne today - more than eight years after she died of lung cancer.

Lawyers for parties involved in multiple proceedings told Justice Stephen Kaye in the Victorian Supreme Court that they had settled their differences. . . .

Mr Gordon had to step aside from being the McCabe family lawyer after BAT, a company he called the best resourced litigant in the world, sued him personally.

"Whilst Rolah is only one of thousands of people killed every year by tobacco what she stood for both in her commitment around these courts and the commitment of her children ever since is an important legacy,'' he said.

Mr Gordon said lawyers in the US had recently used information unearthed in the McCabe case to fight tobacco companies on behalf of smokers, winning initial damages of billions of dollars.

The family lawyer, Leon Zwier, of Arnold Bloch Leibler, said they never got to the point of reopening the original McCabe legal action.

He said the family was seeking to use new documents that had come into existence but that dispute was now over.

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• ACKLAND: Tobacco cases reignite debate over the complex legal system and bias  

Are judges biased? It would be an amazing feat of self-discipline if they were not riddled with likes, dislikes, prejudices and vices. An academic study has just been published in the US by Cambridge University Press with the startling title Bias! The Case Against Lawyers and Judges, by Professor Benjamin Barton.

The professor says that judges have an instinctive tendency to favour lawyers and the legal profession in areas such as self-regulation, lawyer-client privilege, non-competition agreements between lawyers and malpractice cases. He also says judges help lawyers by making the law more complex. Lay citizens can see this clearly, but lawyers can't.

The important thing as far as judges are concerned is not whether they are biased, but whether they appear to the public to be biased. That would be a bad thing, because it would undermine respect for the judiciary and getting people to obey its orders. Maybe judges have worked out how to be biased, but to cover it up with clever tricks. . . .

only this week the High Court struggled with the notion of apprehended judicial bias.

Would a fair minded lay observer think that Judge Jim Curtis of the NSW Dust Diseases Tribunal was biased against British American Tobacco, which is fighting off with terrifying firepower a claim from Claudia Laurie, the widow of a deceased smoker?

Judge Curtis in a different case ruled, after hearing evidence from a former BAT lawyer and company secretary, Fred Gulson, that the tobacco company should produce documents over which it claimed lawyer-client privilege. The judge, in a preliminary finding was persuaded that the privilege could be overcome because BAT in Australia had adopted a ''document retention policy'' for a fraudulent purpose, namely the destruction of documents so as to hinder claimants suing for tobacco-related injuries and death. He added this was ''a live issue for the trial''.

The good old document destruction policy rears its head again.

BAT argued that Judge Curtis should not have made a finding of fraud, but should have confined himself to whether there were reasonable grounds for such a finding. . . .

Clayton Utz, the big law firm that acted for BAT in the McCabe trial, did its own internal investigation and found that two of its partners had behaved improperly. One had frustrated the discovery of documents and the other had given evidence that was ''potentially perjurious''.

Those internal findings are being used by Mrs McCabe's daughter, who is fighting still to reopen the case and introduce this new evidence. If some of the partners of big law firms who acted for BAT's interests in that and other cases are ever cross-examined there could be some unfortunate collateral damage.

The very soul of tobacco litigation hinges on the extent to which incriminating documents are destroyed. Trial courts know that only too well. Fair-minded lay observers may have got to the point where they apprehend the bias lies higher up the judicial food chain.

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• GORDON: Insidious attack on free speech 

It's time to challenge this war on information, and call it what it is - a growing and insidious attack on free speech.

We should re-examine the way the law treats claims to privilege and confidentiality and the way governments can suppress information. It's become too hard and too expensive to access and legitimately use information in this country. . . .

WikiLeaks is the most obvious example of the broader war being waged by the most powerful interests in society on access to important information generally.

We are continuously softened up to the notion that it is proper for information to be denied us because it is confidential, ''commercial in confidence'', compromises national security, is subject to parliamentary or legal privilege, or should be kept quiet for diplomatic reasons. Too often these are vacuous claims. . . .

My own former clients, the family of Rolah McCabe, are still fighting British American Tobacco in the Victorian Supreme Court just for the right to use information they obtained more than four years ago, to seek to prove that the court itself had been deliberately misled. In 2007, then director of public prosecutions Paul Coghlan was sufficiently concerned by the content of those documents to refer them to the Australian Crime Commission.

Today, I'm not even allowed to tell you what they say.

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Tobacco giant targets dead litigant's home 

Jamie McCabe (left) says British American Tobacco has warned that the home that belonged to his late mother, Rolah McCabe (right, above), may have to be sold to recover its legal costs if the family continues to litigate. Photo: Craig Sillitoe, Viki Lascaris, Michael Clayton-Jones

THE son of landmark Australian tobacco litigant Rolah McCabe has accused British American Tobacco of attempting to bully and intimidate his family by warning that his Cranbourne home could be sold to recover the tobacco giant's legal costs.

Jamie McCabe described the warning - in an October letter from the company's lawyers, Corrs Chambers Westgarth - as a fresh attempt to get his family to drop its legal fight.

In the latest chapter of an eight-year legal battle, the lawyers for British American Tobacco Australia Services say the company may ''ultimately look to'' the sale of the house to recover its costs, and says the 2004 transfer of Ms McCabe's Cranbourne home to her son was ''unlawful''.

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Tobacco company accused of bullying  

Ms McCabe, who died in 2002 after smoking all of her life, was the first Australian to successfully sue a tobacco company.

She won $700,000 in compensation after a Supreme Court judge found the company had destroyed potentially relevant documents about the damaging effects of smoking.

But nine months later the Court of Appeal overturned the judgment and ordered Ms McCabe's estate to repay the compensation along with legal costs.

British American Tobacco Australia (BATA) is also threatening to recover costs from Mr McCabe's sister, who is taking legal action to obtain documents detailing the conduct of the company's lawyers.

Mr McCabe says the company is trying to scare his family into dropping their legal suit but he says he will not let his mother die in vain.

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• Tobacco giant targets dead litigant's home 

THE son of landmark Australian tobacco litigant Rolah McCabe has accused British American Tobacco of attempting to bully and intimidate his family by warning that his Cranbourne home could be sold to recover the tobacco giant's legal costs.

Jamie McCabe described the warning - in an October letter from the company's lawyers, Corrs Chambers Westgarth - as a fresh attempt to get his family to drop its legal fight.

In the latest chapter of an eight-year legal battle, the lawyers for British American Tobacco Australia Services say the company may ''ultimately look to'' the sale of the house to recover its costs, and says the 2004 transfer of Ms McCabe's Cranbourne home to her son was ''unlawful''. . . .

A legal source aware of the case told The Age: ''A multibillion-dollar company does not need a few thousand from a suburban house. They are doing this to intimidate the McCabes all over again.''

In 2002, Ms McCabe became the first Australian to successfully sue a tobacco company. She won $700,000 in compensation after Justice Geoffrey Eames, in the Victorian Supreme Court, found the tobacco company had destroyed potentially relevant documents about the damaging effects of smoking.

But nine months after the win, the Court of Appeal overturned the judgment and ordered Ms McCabe's estate to repay the compensation as well as the company's hefty legal costs.

Four years ago, members of the McCabe family launched legal action to obtain documents detailing the conduct of BAT's then lawyers, Clayton Utz.

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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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