NSW Supreme Justice Paul Brereton has adjourned until next Wednesday (Dec. 13) the “fully-blown” hearing into why he should disqualify himself from sitting on the BAT v Slater & Gordon confidentiality case.
This unfortunate development has blown out of Brereton’s earlier order for Slater & Gordon’s principal, Peter Gordon, to cough up the name of the source of explosive internal Clutz documents, which have caused great angst for the BAT cancer stick people.
Slater & Gordon want to use the Clutz documents to see if it can reopen the Rolah McCabe case. The Victorian regulators are also anxious to examine the details with an eye on any breaches of professional conduct.
Gordon did reveal the source in an affidavit filed today, but it was not read in open court. However, the salacious source issue was overshadowed by the disqualification application.
Slater & Gordon made the “urgent” application this morning after they discovered that Brereton had been retained by BAT in 2003 in the Eubanks v Cannar proceedings and would likely be reviewing some of the same confidential material in these proceedings.
According to Jack Rush, for Slater & Gordon, that material includes advice given to the former head of BAT’s legal operations in the UK Nicholas Cannar on April 2, 1990 and relates to “iniquitous” behaviour involving Cannar, Clutz partner Brian Wilson and Fred Gulson, the former company secretary of W.D. & H.O. Wills.
An affidavit filed by Leon Zwier of Arnold Bloch Leibler, representing S & G, shows that Brereton first revealed his involvement with BAT on November 2 this year during injunction proceedings between BAT and Fairfax.
“At some stage in the past, for a short time when I was at the bar, I acted I think, for BATAS or one of the BAT companies in connection with proceedings in the United States District Court in Columbia, I think. As far as I am concerned it causes me no embarrassment or difficulty whatsoever.”
ABL became aware of it only on the December 1, during proceedings between BAT and S & G when Brereton made a similar disclosure…
“at one stage in the Cannar and Eubanks proceedings I had a brief from one of the BAT companies, I forget which one.”
Rush submitted that the mere fact of Brereton’s involvement put him in “an intolerable situation”.
It emerged that in January 2003 Brereton received an 827-page brief from Corrs Chambers Westgarth (the same firm currently acting for BATAS).
Along with barrister Mark Leeming, Brereton wrote a submission in support of an application to stop evidence being taken on commission in Australia.
That submission was produced to the court today, much to Brereton’s surprise.
“That’s something I didn’t remember.”
He did, however, furnish all parties with an outline of his involvement with BATAS from January 2003 to May 2004.
Rush told the court Brereton billed the tobacco company for 10 hours, which included a number of conferences and telephone calls.
Brereton assured the court that his involvement was “finished well before” the hearing before Justice Virginia Bell.
He also insisted that he “did not have cause to consider any documents in relation to any internal investigation by Clayton Utz”.
Rush pressed the point.
Brereton’s disclosure of his work for BAT put the disqualification application in “an entirely different perspective” than his disclosure to the court of his personal associations with Clayton Utz partner Stuart Clark and Slater & Gordon partner Steven Lewis, Rush argued.
“Your Honour’s briefing by Corrs on behalf of BAT was in relation to matters which directly arise in these proceedings.”
Rush noted that Brereton had declined to appear against BAT in the Dust Diseases Tribunal in May 2004 on the basis of his previous work for BAT.
The judge made it clear he was irritated by Rush’s application for more time to consider documents to which the defendants were granted access to this morning.
These included court files relating to the Court of Appeal hearing and common law proceedings before AJ Brownie (Cannar’s in-camera evidence was excluded on the basis of confidentiality).
Despite Rush’s claim that the apprehension of bias was “reinforced” by the documents, Brereton declined his application for further details of the brief he received in January 2003 or of the letter of request from the US District Court in Columbia.
Brereton said he was not inclined to permit an “extensive inquiry”, accepting counsel for BATAS Michael Wheelahan’s submission that it was a “fishing expedition” mounted for “an improper purpose”.
A reminder that unlike the tobacco companies, “fees in excess of $600,000 are not resources available to the defendants in these proceedings” prefaced Rush’s plea for more time.
That brought a wave of sniggers from the assembled tobacco ranks.
Earlier the court heard that BATAL’s latest costs settlement offer to Fairfax and The Age was $150,000, of which $130,000 is counsel’s fees.
Stephen Robb for Fairfax called for counsel’s invoices and the complete schedule of claim.
Robb revealed that BATAL’s initial bill came in at over $600,000, a figure which caused “shock and awe” and was “so astonishingly high it couldn’t be justified”.
The final costs’ hearing is set down for April 3, 2007.
N.B. Brereton declined an application by this organ for access to the affidavit filed by ABL this morning identifying who gave S & G the confidential Clutz documents and to whom they were shown. BATAL says it will consider joining them in proceedings.