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Court in the Act
2 September, 2009  
No molluscs in Melbourne

Appearance of conflict … It took Justice Paul Brereton nearly two months to recuse himself from hearing tobacco litigation in the NSW Supreme Court … It took Justice Elizabeth Hollingworth just a few moments to do the same thing in Victoria … What’s in the water?


imageLike a speeding bullet Justice Elizabeth Hollingworth from Vic Supremes recused herself when the Batty v Peter Gordon case came her way on August 18.

She was out of there is a trifling 16-pages of transcript.

The current proceedings have been brought by the cancer-stick manufacturers BATAS and BATAL.

They want to permanently enjoin the estate of Rolah McCabe and Slater & Gordon and Peter Gordon from using secret information that points to an iniquity in the way Clayton Utz defended the McCabe case and conducted the appeal for the tobacco boys.

The estate wants to set aside the Victorian Court of Appeal decision, which overturned the findings and verdict in favour of Rolah McCabe.

An iniquity could defeat the claims by BATAS of privilege and confidentiality that were upheld by VicAppeals.

All of this arose from the famous leaked internal investigation conducted by Clutz.

See Justinian passim:

Rolah McCabe rolls on

Fight to reopen Rolah McCabe case

Revenge is a kind of wild justice

In any event, Julian Burnside, for the estate, pointed out to Hollingworth that it is “probably undesirable as a matter of appearance that Your Honour should proceed to hear the matter”.

She had acted in an interlocutory application for Wills, which later became one of the Batty companies, in the Cremona tobacco litigation.

Cremona was ultimately settled in 1998.

Hollingsworth also had been at Mallesons, which had taken large amounts of the cancer stick shilling.

Clearly, she hadn’t “apprehended a problem” when she took the case over from Justice David Byrne. That transfer was necessary because the litigation will not be resolved during what’s left of Byrne’s judicial life. On page nine of the August 18 transcript Hollingworth said:

“All right. Unless there is anything else that you wish to say, I think in the circumstances, without having to debate this too much further or explore this much further, I think the appearance of impartiality is the critical issue.

I don’t perceive I have an actual conflict but I do think that this is such an important piece of litigation that the mere appearance of conflict should be avoided if possible.”

Down she stepped.

Compare that with Justice Paul Brereton when tobacco proceedings were before him in the NSW Supreme Court in 2006-2007.

It took him nearly two months to disengage from the hearing after an application to recuse commenced on the ground of his prior association with one of the BAT companies.

At that stage the Batties were fighting to stop further use by the media and by Slater & Gordon of Clutz’s internal findings about the conduct of some of its senior litigation people. Injunctions were flying everywhere.

Brereton had been briefed by British American Tobacco Australia Services in 2003 and co-authored a submission in support of an application to stop evidence being taken on commission in Australia from Nicolas Cannar, the former head of BAT’s legal affairs in the UK.

That was to do with the Department of Justice’s racketeering case against big tobacco

Here’s the timeline:

November 23, 2006: After 21-pages of transcript Brereton said, “I have just noticed something about the courtroom. I have made a whole lot of disclosures in proceedings about various relationships between various parties”.

He made no reference at that point to having acted for BATAS.

November 29, 2006: The parties were back before Brereton. No mention in 22-pages of transcript about acting for BATAS.

December 1, 2006: At page 50 of 51-pages of transcript counsel for Slater & Gordon noted that HH had an involvement with a partner at Clutz (Stuart Clark).

Brereton then said:

“And you have probably seen this in the transcript as well, that at one stage in the Cannar v Eubanks proceedings I had a brief from one of the BAT companies. I forget which one. I wasn’t involved in this, the parties in the media proceedings – that was disclosed to them a couple of times and no doubt you have seen that transcript as well.”

December 7, 2006: Application to recuse commenced – 44 pages of transcript.

December 13, 2006: Application continues, 70-pages of transcript – a full day.

December 14, 2006: Application continues, 54-pages of transcript.

February 22, 2007: Judgment delivered.

“A reasonable bystander might think there was a real danger that I might be influenced, even unintentionally, by a natural inclination to avoid a conclusion that a cause with which I had been professionally associated, however briefly, was an iniquitous one …

I should therefore not sit on a proceeding which would require me to consider the iniquity issue [of the document management policy].”

February 26, 2007: Like a Sydney Rock Oyster HH was clinging onto a hearing of an application to transfer the matter to the Supreme Court of Victoria.

February 27, 2007: Still hearing the transfer application and other matters.

March 16, 2007: Further judgment.

March 22, 2007: Orders made to transfer the case.

Is there something in the water that makes Melbourne judges quicker on the uptake about apprehensions and appearances of conflict?

Anyway, it’s nice to see the Batty companies relentlessly dragging this on, using two companies as plaintiffs.

No doubt there are some exciting cost implications in that strategy.

Corrs and Baker & McKenzie, who are acting for these merchants of death, have run up costs in the order of $8 million to stop the use of material that points to an iniquity in the McCabe case on the part of Batty and its lawyers.

Arnold Bloch Leibler, acting for the McCabe estate pro bono, probably has racked up costs over $2 million.