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Court in the Act
30 August, 2007  
More Catch 22s than a Joseph Heller novel

“Iniquity drips off the pages.” The move to get the Court of Appeal’s findings in the Rolah McCabe case set aside grinds painfully on. So too does the inquiry into the Clayton Utz documents that allegedly revealed an “iniquity” by the tobacco boys in the conduct of the appeal. From the AG to the DPP and now the Crime Commission


Almost a year after British American Tobacco first stomped on the further publication of confidential material which could see it charged with criminal conduct, a judge still hasn’t seen the material in question.

BAT has so far successfully protected the documents from any kind of scrutiny. It has done so via a relentless string of injunctions, cross-use injunctions, Harman undertakings, appeals, cross-appeals and costs orders which stretch all the way from the NSW Supreme Court to the Victorian Court of Appeal.

imageIn October 2006 BAT persuaded the court to slap an injunction on The Sunday Age for publishing an internal Clayton Utz report that alleged serious misconduct by its own lawyers in the Rolah McCabe case.

In 2002 McCabe became the first person in Australia to win damages from a tobacco company after Victorian Supreme Court judge Geoffrey Eames (pic) found that BAT and its law firm Clayton Utz had denied McCabe a fair trial by destroying incriminating documents.

Later that year, the Victorian Court of Appeal overturned the judgment, saying there was no evidence the firm had deliberately engaged in document destruction. It also found Eames had erred by waiving BAT’s legal professional privilege.

Lawyers for Rolah McCabe want to set aside the Court of Appeal decision and re-instate Eames’ ruling on the basis that the documents leaked to them by former Clayton Utz partner, Christopher Dale, contain evidence of “iniquity”.

They are being frustrated at every turn, with the latest stoush involving an interlocutory appeal by BAT over Victorian Supreme Court judge David Byrne’s recent ruling (see Justinian’s recent report).

Byrne allowed McCabe’s lawyers to use confidential material common to sister tobacco companies British American Tobacco Limited (BATAL) and British American Tobacco Australia Services (BATAS) to defend interim injunctions brought by one of them, BATAS, against Rolah McCabe’s daughter, Roxanne Cowell, and Slater & Gordon.

Slater & Gordon principal Peter Gordon, who acted for Rolah McCabe and who leaked the Clayton Utz findings to The Sunday Age, is also the subject of an interim injunction and breach of confidence action.

Appeal judges Chernov and Neave rejected a “Catch 22” submission by Slater & Gordon’s barrister Ron Merkel, to have a final hearing of all matters before Justice Byrne.

“The Catch 22 being you can look at some of the information, but not all of it, in the same proceeding. What is a court to do: pull out scissors and cut and paste? It is a nonsense. But it is a bigger nonsense because we can’t use this information. It is all under confidentiality undertakings. We can only adduce it in court, in evidence in the case; but I am committing a contempt if I now show you some BATAS information to make my point that it is relevant to BATAL. I am already in contempt because of this cross-use injunction, so what is the point of sending
that off to a Court of Appeal for three judges to hear? What injustice can they suffer? Absolutely nothing.”

The leave to appeal application and the appeal itself will be heard by three court of appeal judges who will apparently “move heaven and earth” to hear it before the end of the year.

Chernov and Neave granted a stay of BAT’s attempt to enforce a $2.1 million costs order on Roxanne Cowell, but not before adding:

“It is not a pretty picture, as far as this case is concerned, as to the time it has taken for the matter to come to fruition.”

A week later (August 22), not much had changed. The management of the case was back before Justice Byrne, with Merkel once again arguing for a “final expedited hearing” and ostensibly being backed up by counsel for BATAS, Allan Myers QC.

Myers: Your Honour, it is our proceeding and we wanted it to be heard and determined as soon as may be so that the matter is sorted out once and for all.

Byrne: I can understand your feeling that way Mr Myers, yes.

Myers: But that said, if I am asked what prejudice there is apart from gross delay, and let it be very clear who is initiating the delay.

Byrne: I thought it was you.

Myers: No Your Honour.

Byrne: You are the one in the Court of Appeal.

Myers: Yes, but we are exercising our rights here. We are not saying we don’t want to.

Byrne: But you don’t have rights until the Court of Appeal reverses my decision.

In the meantime, the Victorian DPP has passed his inquiry into the Clutz documents onto the Australian Crime Commission. In a letter to the Attorney General, Rod Hulls, the DPP mentioned that perjury and conspiracy to pervert the course of justice need to be probed with the ACC’s coercive powers.