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Court in the Act
13 December, 2006  
Fight to reopen Rolah McCabe case

It’s pumping in court 11D: Clayton Utz’s Brian Wilson said to have denied Rolah McCabe a fair hearing … Victorian Court of Appeal may have been misled in major tobacco case … Batty Boys desperate to conceal documents pointing to iniquitous conduct … Justice Brereton urged to excuse himself as he was previously briefed to uphold the sanctity of the “document retention policy”

Slater & Gordon told Justice Paul Brereton today (Dec. 13) that it has only one interest in the current injunction proceedings brought against them by British American Tobacco – to reopen the Rolah McCabe case.

imageIn his first appearance for S & G former federal court judge Ron Merkel said it was clear from the suppressed documents that former Clayton Utz partner Brian Wilson’s (snap) “intervention” in the Court of Appeal had denied McCabe a fair hearing.

S & G wants the Victorian Court of Appeal judgment in McCabe set aside on the basis of “facts which are not correct”.

In what Merkel described as a “carefully crafted” affidavit, Wilson denied any involvement in the conduct of the McCabe case.

Merkel, who is presenting the case for Brereton’s disqualification from proceedings, accused the tobacco companies of “seeking to suppress matters central to issues in the McCabe litigation”.

Their purpose was ultimately to conceal the iniquity revealed in the Dust Diseases Tribunal decision and in the US District Court, Merkel said.

“That’s what your Honour’s brief was,” he added, referring to Brereton’s previous involvement with the cancer stick manufacturers.

He called for Brereton to recuse himself on the basis of “the nature and extent of your Honour’s role in the Cannar proceedings”.

On December 1, Brereton revealed he had been briefed by BATAS in 2003 and co-authored a submission in support of an application to stop evidence being taken from Nicholas Cannar, the former head of BAT’s legal operations in the UK, on commission in Australia.

Documents produced on notice by BATAS revealed Brereton received an 827-page brief on the matter; BATAS is claiming privilege for 814 of those pages.

During the course of the day Merkel sought to impress upon Brereton the links between the issues in the McCabe case, the Cannar proceedings and the current proceedings.

He met with considerable resistance from the bench. Merkel submitted that Brereton’s role in Cannar was:

“To protect the legal professional privilege of the document policy and to reject any allegations of iniquity in respect of those practices.”

These were the same policies and practices embodied in the documents over which protection was sought in the current case, Merkel argued.

“The heart and soul of tobacco litigation in this country and the US revolves around the extent to which there was destruction of incriminating documents.”

When Michael Wheelahan, for BATAS, objected to a 50-page affidavit sworn by Arnold Bloch Leibler solicitor Leon Zwier outlining the grounds for Brereton’s disqualification, the judge lamented:

“The problem is it’s all so inter-twined; the privilege claim, the iniquity claim and the application for disqualification.”

imageThe court was temporarily closed as Merkel (snap) sought to define what he could and couldn’t say in open court. This did nothing to cramp his style.

He accused BATAS of failing to disclose the extent of Brereton’s involvement in the Cannar matter. He stressed that Brereton’s submissions in Cannar were designed “to prevent the disclosure of the same privileged information that is in these proceedings”. Further:

“Tobacco companies need to maintain that concealment through claims of legal professional privilege – for the purposes of frustrating the processes of the law itself.”

When Merkel submitted that the document “overlap” was “significant”, Brereton responded that his submissions were “framed in terms of privilege, not confidentiality”.

The “reasonable bystander” would not understand the fine distinction between confidentiality and privilege Merkel suggested.

Brereton’s appearance for BATAS and his sitting as a judge three years later on such a case was one of the clearest cases of apprehended bias, he said.

In one of the more extraordinary questions from the bench, Brereton asked:

“How do know that the judge didn’t hate what he did for the tobacco companies and formed a negative view as a result?”

Brereton then wanted evidence of where exactly “iniquity was raised in Cannar and McCabe”.

It was “stamped over every aspect of Cannar”, Merkel argued, referring to the document destruction policy.

Merkel insisted on the force of the disqualification because the current case was about “past strategies, past conduct and past advice of legal counsel on behalf of the tobacco companies”. It involved what he called the “Wilson issue” which was revealed by Clayton Utz’s internal inquiry.

A judge without prior association should hear the current matter, Merkel concluded. He submitted that Brereton’s injunction of November 29 be discharged.

Counsel for BATAS told Brereton his client’s position on the disqualification was “neutral” but he opposed the application for discharge.

Brereton refused a plea by Batty barrister Wheelahan to read into evidence Peter Gordon’s affidavit revealing who leaked the internal Clayton Utz documents.

What a shame.

The court adjourned until tomorrow (Dec. 14). We’ll be there.

See Justinian’s previous report, Brereton guietly fuming over disqualification application.


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