A Sydney judge has reopened the legal assault on the tobacco industry with a preliminary finding that British American Tobacco's controversial document retention policy was intended to conceal the destruction of legally potent records.
Judge Jim Curtis yesterday ordered the company to hand over sensitive material in a cancer compensation case, saying that the company's claim for legal professional privilege could not apply because of evidence that it had dishonestly destroyed damaging documents.
Judge Curtis said the Dust Diseases Tribunal case, which moves to full trial on June 26, raised similar issues as the late Rolah McCabe's unsuccessful pursuit of compensation from BAT.
The case is a claim by Brambles that BAT should pay some of the $200,000 it paid in 2002 to the family of motor mechanic Alan Mowbray.
Mr Mowbray, who contracted lung cancer in 2001 and died the following year, was exposed to asbestos fibres when he worked with brake pads while employed by Brambles. He also smoked from 1946 to 2000.
The case is being run by Brambles' insurer, Allianz Australia, which said yesterday's ruling could be significant for tobacco cases.
"It could result in previously undisclosed documents … being made public, which could be used by other Australian and international litigants," said Allianz's general manager of corporate affairs, Nicholas Schofield.
Judge Curtis accepted evidence from BAT whistleblower Fred Gulson that the purpose of the policy was to allow the company to destroy damaging documents selectively while asserting the destruction was part of a "rational non-selective housekeeping policy".
BAT declined to comment on the case yesterday. The judge noted that BAT had at all times said its policy did not permit selective destruction of prejudicial documents.
"The assertion by Brambles to the contrary remains a live issue," the judge said.
BAT called no witnesses to counter the evidence of Mr Gulson, a former in-house solicitor for BAT.
The judge noted that while lawyers for BAT attacked Mr Gulson's credibility, they did not put to him directly that his evidence was untruthful, unreliable or motivated by malice.
Ms McCabe's solicitor, Peter Gordon of Slater & Gordon, noted that Mr Gulson did not give evidence in the McCabe case.
In the Victorian Supreme Court, Justice Geoffrey Eames handed victory to Ms McCabe after finding that BAT had subverted the pre-trial document discovery process with the intention of denying her a fair trial.
The appeal court overturned his decision, saying his remedy of striking out the entire defence was "out of proportion".
Judge Curtis referred to the appeal findings and agreed that it was legitimate for BAT's solicitors, Clayton Utz, to tell BAT that it was not unlawful to destroy prejudicial documents as part of a genuine record-keeping policy.
He confined his criticism to the tobacco company, saying it took confidence that no litigant could successfully complain if it selectively destroyed potential evidence.
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