Document discovery and the Australian courts
Evan Jones
Tonight’s
program on Australian public television station SBS’s Storyline
Australia was The Big Lie. It detailed the legal case between Rolah
McCabe and her lawyer Peter Gordon (of Slater and Gordon) and the
multinational giant tobacco company, British American Tobacco and
its Australian subsidiary W.D. & H.O. Wills.
Not a balanced documentary said the TV Guide. Quite right. And not a balanced story.
Rolah McCabe died a living cadaver at age 51, having taken up smoking at age 9. The bulldog law firm Slater and Gordon took up her case, and the case was lifted above the usual trench warfare battles against Big Tobacco by the issue of document discovery.
In the case of McCabe v British American Tobacco Australian Services Limited, there weren’t any documents. That’s because BAT had destroyed (or hidden) documents relevant to McCabe’s case against it. Had BAT been targeting juveniles for decades and lying about it? Did BAT know about the dangers of tobacco and been lying about it?
BAT had been helped, it appears instructed, in its convenient absence of tell-tale documents by the wise counsel of Clayton Utz staffer Brian Wilson. There was a ‘document retention’ policy, which was in fact a document destruction policy.
Gordon won the case for McCabe in the Supreme Court of Victoria in March 2002, the Honourable Justice Eames presiding. In this case, the nomenclature ‘Honourable’ was just. Eames saw the significance of the intent, and judged accordingly.
But such are the nuances of the legal mind, especially when money and power is concerned, that the Victorian Court of Appeal overturned the considered wisdom of the Honourable Justice Eames in December 2002 and May 2003. The rather Dishonourable Justices Phillips, Batt and Buchanan presided. Justices P, B & B awarded costs against the smoker.
Fortunately for Mrs McCabe, she had died in October 2002, and her husband had died of the strain (including an unconscionable harassment by BAT hired investigators). It was left to the McCabe children to experience the ignominy.
The High Court further put in the boot in October 2003, ruling to sustain the Court of Appeal’s decision on a technicality (as per usual).
Perhaps the most surprising element in this case is that anybody would be surprised at BAT’s behaviour and by the behaviour of its legal advisers.
The
BAT/Clayton Utz case was unusual in its severity. The smoking
gun came from insider, previous WD & HO Wills counsel Fred Gulson,
who (after much soul-searching) spilled the beans on his former
employer. Guilty as charged, and then some, said Gulson. The
documents that were pertinent to exposing company culpability were
systematically weeded out and culled.
But if document destruction is not a day-to-day occurrence, document non-discovery is a permanent state of affairs.
Yours truly has seen it in operation with the big banks against small business victims of malpractice by their bank lenders.
The banks decline to come forward with documents vital to an aggrieved borrower’s case. And what do the courts do? Nod on the sagacity of the bank’s behaviour.
The crucial dimension of shock horror thus is not that a large corporate might want to hide its corruption, but that the Australian courts would regularly condone Big Capital’s reluctance.
We might be inclined to think that this conservatism on the part of the bench has something to do with the nature of their legal education, that there is something in the law itself that inhibits a bold move.
Alas, not so. The language is technical, but the substance is anything but. This is corruption pure and simple.
Remember that many justices on the bench have arrived there via a stellar career working for the big end of town. Note that most of the big legal firms are themselves members of the big end of town lobby group the Business Council of Australia – Allens Arthur Robinson, Blake Dawson Waldron, Corrs Chambers Westgarth (which acted for BAT in the Court of Appeal and the High Court), Freehills, Mallesons Stephen Jaques and Minter Ellison.
As Exhibit A for the practice of document non-discovery, consider the case of Sante and Rita Troiani. Sante Troiani was the principal of a highly successful brick manufacturer, Wide Bay Bricks, out of Bundaberg, Queensland. The Troianis were the classic migrant success story. That is until they met the National Australia Bank.
Troiani was induced to shift his business to the NAB in 1993. Troiani agreed to shift accounts. Troiani sought assurance that there would be no conflict of interest with Boral (the bulding products giant and a competitor of Wide Bay Bricks). Troiani was not enlightened that the NAB and Boral had until then had directors in common.
After 1996 it appears that Troiani’s accounts were rifled, the practices assisted by misleading or inadequate documentation from the bank, until the bank put in a receiver in 1999. It also appears that part of the rifling included a $4 million industry assistance rebate to the Troiani company from the federal Industry Department.
In 1999, it has been estimated that the Troianis were worth (business plus other assets) about $100 million. The NAB made a formal demand in 1999 on a claim of indebtedness of a little over $6 million. The Troianis now don’t have a brass razoo.
Judgment was given against the Troianis in 2001 in the Queensland court system. The NAB gained a bankruptcy decision in the Federal Court (where bankruptcy cases are heard) in mid-2002. Sequestration orders against the bankrupts’ estate were given in May 2003. In the last two years, the Troianis have been attempting to have the bankruptcy decision overturned.
And on what grounds? Non-discovery of documents. But to date, the court system has declined to come to the party.
Both the Queensland court system and the Federal Court system have condoned the NAB’s indifference to the supply of relevant documents.
Mr Justice Eames, where are you? You’re needed in Queensland post-haste. The big corporates are effectively beyond the law.
Tonight’s
program on Australian public television station SBS’s Storyline
Australia was The Big Lie. It detailed the legal case between Rolah
McCabe and her lawyer Peter Gordon (of Slater and Gordon) and the
multinational giant tobacco company, British American Tobacco and
its Australian subsidiary W.D. & H.O. Wills.Not a balanced documentary said the TV Guide. Quite right. And not a balanced story.
Rolah McCabe died a living cadaver at age 51, having taken up smoking at age 9. The bulldog law firm Slater and Gordon took up her case, and the case was lifted above the usual trench warfare battles against Big Tobacco by the issue of document discovery.
In the case of McCabe v British American Tobacco Australian Services Limited, there weren’t any documents. That’s because BAT had destroyed (or hidden) documents relevant to McCabe’s case against it. Had BAT been targeting juveniles for decades and lying about it? Did BAT know about the dangers of tobacco and been lying about it?
BAT had been helped, it appears instructed, in its convenient absence of tell-tale documents by the wise counsel of Clayton Utz staffer Brian Wilson. There was a ‘document retention’ policy, which was in fact a document destruction policy.
Gordon won the case for McCabe in the Supreme Court of Victoria in March 2002, the Honourable Justice Eames presiding. In this case, the nomenclature ‘Honourable’ was just. Eames saw the significance of the intent, and judged accordingly.
But such are the nuances of the legal mind, especially when money and power is concerned, that the Victorian Court of Appeal overturned the considered wisdom of the Honourable Justice Eames in December 2002 and May 2003. The rather Dishonourable Justices Phillips, Batt and Buchanan presided. Justices P, B & B awarded costs against the smoker.
Fortunately for Mrs McCabe, she had died in October 2002, and her husband had died of the strain (including an unconscionable harassment by BAT hired investigators). It was left to the McCabe children to experience the ignominy.
The High Court further put in the boot in October 2003, ruling to sustain the Court of Appeal’s decision on a technicality (as per usual).
Perhaps the most surprising element in this case is that anybody would be surprised at BAT’s behaviour and by the behaviour of its legal advisers.
The
BAT/Clayton Utz case was unusual in its severity. The smoking
gun came from insider, previous WD & HO Wills counsel Fred Gulson,
who (after much soul-searching) spilled the beans on his former
employer. Guilty as charged, and then some, said Gulson. The
documents that were pertinent to exposing company culpability were
systematically weeded out and culled.But if document destruction is not a day-to-day occurrence, document non-discovery is a permanent state of affairs.
Yours truly has seen it in operation with the big banks against small business victims of malpractice by their bank lenders.
The banks decline to come forward with documents vital to an aggrieved borrower’s case. And what do the courts do? Nod on the sagacity of the bank’s behaviour.
The crucial dimension of shock horror thus is not that a large corporate might want to hide its corruption, but that the Australian courts would regularly condone Big Capital’s reluctance.
We might be inclined to think that this conservatism on the part of the bench has something to do with the nature of their legal education, that there is something in the law itself that inhibits a bold move.
Alas, not so. The language is technical, but the substance is anything but. This is corruption pure and simple.
Remember that many justices on the bench have arrived there via a stellar career working for the big end of town. Note that most of the big legal firms are themselves members of the big end of town lobby group the Business Council of Australia – Allens Arthur Robinson, Blake Dawson Waldron, Corrs Chambers Westgarth (which acted for BAT in the Court of Appeal and the High Court), Freehills, Mallesons Stephen Jaques and Minter Ellison.
As Exhibit A for the practice of document non-discovery, consider the case of Sante and Rita Troiani. Sante Troiani was the principal of a highly successful brick manufacturer, Wide Bay Bricks, out of Bundaberg, Queensland. The Troianis were the classic migrant success story. That is until they met the National Australia Bank.
Troiani was induced to shift his business to the NAB in 1993. Troiani agreed to shift accounts. Troiani sought assurance that there would be no conflict of interest with Boral (the bulding products giant and a competitor of Wide Bay Bricks). Troiani was not enlightened that the NAB and Boral had until then had directors in common.
After 1996 it appears that Troiani’s accounts were rifled, the practices assisted by misleading or inadequate documentation from the bank, until the bank put in a receiver in 1999. It also appears that part of the rifling included a $4 million industry assistance rebate to the Troiani company from the federal Industry Department.
In 1999, it has been estimated that the Troianis were worth (business plus other assets) about $100 million. The NAB made a formal demand in 1999 on a claim of indebtedness of a little over $6 million. The Troianis now don’t have a brass razoo.
Judgment was given against the Troianis in 2001 in the Queensland court system. The NAB gained a bankruptcy decision in the Federal Court (where bankruptcy cases are heard) in mid-2002. Sequestration orders against the bankrupts’ estate were given in May 2003. In the last two years, the Troianis have been attempting to have the bankruptcy decision overturned.
And on what grounds? Non-discovery of documents. But to date, the court system has declined to come to the party.
Both the Queensland court system and the Federal Court system have condoned the NAB’s indifference to the supply of relevant documents.
Mr Justice Eames, where are you? You’re needed in Queensland post-haste. The big corporates are effectively beyond the law.
