There have been further developments in the court room circus between the BAT cancer stick manufacturers and the Fairfax-Age newspapers.
Tomorrow (Wed, Nov. 29) will see the commencement of the injunction hearing before Justice Paul Brereton in the NSW Supreme Court. Unless the whole shebang settles the production promises to be bigger than Ben-Hur.
Fairfax-Age newspapers and now Melbourne law shop Slater & Gordon are wanting interim injunctions granted to British American Tobacco on Nov. 2, lifted.
Fairfax-Age newspapers are keen to get on with the job of printing salacious details from an internal Clutz’ investigation into the conduct of some of its top brass in defending the 2002 smoking damages case brought by Rolah McCabe in Melbourne.
Our sister organ the Gazette of Law & Journalism reports that Slater & Gordon, which acted for McCabe, has now been joined in the interim injunction to stop it “publishing, disseminating or using” information from several sets of confidential documents.
These include communications between British American Tobacco Australia Services Limited (BATAS) and British American Tobacco Australia Limited (BATAL) and their former law firm Clayton Utz, their current law firm Mallesons and an internal Clayton Utz report leaked to The Sunday Age and The Age.
That report was the basis of an article published in The Sunday Age on October 29. It alleged that two of Clayton Utz’s former partners, Glenn Eggleton and Richard Travers, had engaged in serious professional misconduct by misleading the court and by giving “potentially perjurious” evidence in the McCabe case.
The tobacco companies’ are alleging breach of confidence and claiming the documents are protected by legal privilege. Fairfax and The Age say the documents reveal an “iniquity” perpetrated by BAT and Clayton Utz.
Jack Rush QC (pic), for Slater & Gordon and its principal Peter Gordon, told Justice Paul Brereton last Thursday (Nov. 23) that he would seek instructions to the effect that Slater & Gordon would not mount a damages claim in the Victorian Supreme Court on behalf of Rolah McCabe’s estate until a decision had been made on the injunction.
However, he told the court: “Mr Gordon saw the iniquity involved when he saw the material.”
This produced a wave of sniggers from the ranks of tobacco solicitors cramming court 11D in Queens Square.
Rush revealed that the Clayton Utz documents had already been provided to authorities in Victoria – the Legal Services Commissioner and the police – and shown to several counsel.
“An injunction should not stand in the way of an investigation into the conduct of lawyers and potentially fraudulent activity,” Rush submitted.
Brereton refused a request by Rod Smith SC, for BATAS, that Slater & Gordon reveal the identity of those counsel.
He granted BATAS an interim injunction, limiting Slater & Gordon’s use of the documents to their preparation for the final injunction hearing.
Brereton rejected an application by Michael Wheelahan SC, for BATAL, that Fairfax and The Age provide answers to interrogatories which would name the source of the “leak”.
Stephen Robb SC for Fairfax invoked the “newspaper rule”, saying he needed more time for preparation in light of the journalists’ positions.
Despite Wheelahan’s claim that the identity of the source was a “most relevant fact to the breach of confidence action”, Brereton exercised his discretion to stand the matter over until the final hearing.
Because Slater & Gordon were joined only last week as defendants in the tobacco companies’ proceedings its case will not be heard tomorrow (Nov. 29).
The whole snowballing injunction-iniquity fight commenced after Financial Review reporter Marcus Priest emailed questions to Mallesons asking about aspects of the draft Clutz investigations.
The internal law firm report detailed the Batty Boys litigation strategy in the earlier Cremona tobacco damages case and Priest thought that might made a good story for his AFR law pages.
It just goes to show – it doesn’t pay to check the facts.