Legal Bickering Continues Over Tobacco Documents

December 15, 2006: The legal wrangling over British American Tobacco related documents continues as the tobacco company fights to keep internal documents relevant to the Rolah McCabe case out of the public spotlight.

It was the case that ruled in favour of cancer victim, Rolah McCabe and law firm Slater and Gordon against British American Tobacco. The decision came on the pretence that BAT had denied McCabe a fair trial due to its destruction of documents. Now, years after McCabe’s death and a subsequent overruling by the Court of Appeal, internal documents at the centre of the case and relevant to BAT’s legal team Clayton Utz, threaten to be released by a number of metropolitan newspapers.

The documents contain information on an internal report undertaken by BAT’s former lawyers Clayton Utz after the ruling on the McCabe case but before the Court of Appeal consequently overturned the decision. Of particular interest to Slater and Gordon is information included in the report on the behaviour of senior partners at Clayton Utz.

The NSW Supreme Court this week heard that internal documents from Clayton Utz regarding an investigation in to the case after the decision had not been handed over to the Court of Appeal. It is these documents that the tobacco firm is seeking to prevent being published. The Australian Financial Review reported this week that based on these documents, Slater and Gordon claim a senior partner from Clayton Utz misled the Court of Appeal by withholding information relevant to the Rolah McCabe case.

Already the internal documents have travelled further then where they were originally leaked to the Sunday Age. The Age reports that the Victorian Cancer Council has obtained a copy alongside the Financial Review and Slater and Gordon – who are closely examining their contents to attempt to reopen the case. McCabe’s daughter, Roxanne Cowell, has received a letter from BAT requesting she sigh an undertaking to not reveal information contained in the internal report.

Both the Financial Review and the Sunday Age have agreed to not publish documents representing about 3 percent of the entire report.

McCabe was for a short time the first and only Australian to successfully take action against a tobacco company. By arguing that BAT had destroyed documents key to the case, Slater and Gordon said their client could not receive a fair trial, an argument that Justine Eames consequently agreed with when he ruled in favour of McCabe.

But weeks after McCabe’s death, the Court of Appeal overturned the decision. Although former in-house lawyer Fred Gulson then stood up to the plate to reveal all on BAT’s ‘document retention policy,’ the revelation came too late to change the decision.

IDM contacted Slater and Gordon but was told the law firm would be unable to comment due to the legal action currently in progress. The hearing continues.

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