BAT wins appeal, case continues
BAT wins appeal, case continues
In the first of a new series, Image and Data Manager updates past important stories
The precedent-setting case of British American Tobacco versus cancer victim Rolah Ann McCabe is to be re-tried; after the Court of Appeal in Melbourne today overturned Justice Geoffrey Eames’ judgement against British American Tobacco (BAT).
In April 2002, Justice Eames’ threw the case of McCabe versus British American Tobacco (BAT) out of court in what was one of the Court’s most significant legal decisions and ordered BAT to pay Ms McCabe $700,000. This ruling could have a significant impact on record keeping practices in Australian organisations.
Justice Eames ruled that because BAT could not produce vital research documents for the case, this prevented Ms McCabe from receiving a fair trial.
BAT was unable to supply Melbourne solicitors Slater & Gordon with documents they required for their client’s case, despite having been able to produce the documents in a 1996 case.
Ms McCabe’s case against BAT hinged on her being able to prove that BAT know that the cigarettes she had been smoking since she was 12 would cause her cancer. Documents from the 1996 Cremona versus BAT case would have been used in the court case.
However, the Court of Appeal ruled that BAT had succeeded on all issues argued in its appeal. Allan Myers QC, representing BAT also defended Clayton Utz the then lawyers of BAT, saying that there was no basis for any finding that the law firm was part of a conspiracy to destroy documents. Clayton Utz solicitor Brian Wilson represented BAT in defence in the April case. In a statement, David Fagen, the chief executive partner at Clayton Utz, said he “welcomed” the decision.
”The finding that Clayton Utz, through Brian Wilson, devised a strategy in 1990 in which BAT was advised that it could destroy documents relevant to anticipated litigation and assert an innocent intention was not justified,” said Mr Fagen in a statement.
Ms McCabe succumbed to her cancer and died in October, 2002, yet the Court of Appeal has ordered a re-trial.
Speaking after the Court of Appeal ruling in December, corporate and regulatory affairs director for BAT John Galligan said; “We are pleased with the decision as we have always maintained that our defence in this case should not have been struck out in the first place.”
”We have never sought to deny anyone their day in court, all we wanted was to have ours and a chance to defend ourselves. We are pleased therefore with today’s decision by the Court of Appeal,” said Mr Galligan. He added, “What we can say is that we are pleased that the Court has brought back some fairness to what has been to date a very one sided look at the issue.”
Peter Gordon, a partner at Slater & Gordon who represented Ms McCabe, said they would carry the fight on; and take it to the High Court.
Speaking to the media at Court of Appeal in Melbourne, Mr Gordon said he would continue the fight with BAT and appeal the decision. Mr Gordon said that David Schechter’s confession under oath that the BAT “document retention policy” destroyed documents so that they would not be used against BAT by plaintiffs and the media would form part of his case.
Brendan Scott, a senior technology lawyer with Gilbert + Tobin said the decision of the Court of Appeal was not a surprise: “[The original ruling] was such an extreme consequence of their actions,” Mr Scott said of Justice Eames’ ruling against the BAT records management policy.
Justice Eames’ original decision placed unprecedented legal importance on document management principals.
"Whatever else can be said of it, the McCabe case stands as stern warning to anyone who underestimates the importance of their archiving and document management procedure. Inappropriate procedures can have dire consequences," said Brendan Scott.
A further twist to the tale in the same week was when the US Justice Department summoned the managing director of Imperial Tobacco Australia, Nick Cannar to answer allegations that he perverted the course of justice by allegedly destroying documents when he worked as legal counsel for BAT in Australia.
Mr Cannar was a legal counsel with BAT and is implicated by Slater & Gordon as being central to the alleged document destruction that took place. Mr Cannar along with Patrick Sheehey the chairman of BAT Industries at the time are alleged to have devised a Ôspring cleaningÕ campaign to destroy research documents.
Brendan Scott explained that destroying documents in Australia that has ramifications for justice in America, and is still a perversion of the laws in America.
"If you had a document now in Australia that would put President Bush in jail and you destroyed that to prevent this happening, that is just as much a perversion of justice in America as it is here," he said.