As we, as a community, gather together, reflect on the year that was, I wonder how the lawyers who act for the big tobacco companies will view their performance this year.
Recently the daughter of the late Rolah McCabe, Roxanne Cowell, and employees of The Cancer Council Victoria received letters from Corrs Chambers Westgarth, lawyers for the Australian arm of the multinational tobacco company, British American Tobacco (BAT).
The letter demanded them not to disclose potentially damaging material about BAT’s destruction of documents and the behaviour of its lawyers in the now famous McCabe case. It threatened immediate legal action if they refused to give in BAT’s demands.
This latest episode in a long legal saga follows damaging revelations that entered the public arena at the end of October. A secret internal report by BAT’s former lawyers, Clayton Utz, had found that one of the firm’s partners had given evidence in the McCabe case that was “potentially perjurious”. The report said that this partner and another partner had engaged in serious professional misconduct in their defence of Mrs McCabe’s claim on behalf of the company.
The report also contained allegations that a third partner had made submissions to the Victorian Court of Appeal that were misleading.
The 2002 McCabe case marked the first time outside the US that a person dying of a smoking-caused illness had won a damages judgment against a tobacco company. It was worthy of the community’s attention for that reason alone, but it is much better known for the story of document destruction that it uncovered and that took on international significance.
The trial judge, Justice Eames, struck out BAT’s defence in part on the grounds that it had destroyed thousands of documents that were potentially relevant to Mrs McCabe’s case in order to prevent them being used against the company in cases like Mrs McCabe’s.
There has never been any dispute about the fact that thousands of documents were destroyed. What has been contested has been the reason that the documents were destroyed. The Victorian Court of Appeal took a different view from Justice Eames, ascribing an innocent purpose to the document destruction, and overturning the verdict.
Since the hearing before Justice Eames, a stream of evidence has emerged about BAT’s “document retention policy” including from former employees of the company, which has supported the conclusions reached by Justice Eames.
Everything about this case so far has confirmed the community’s worst feelings about the legal system - that you get the “justice” you pay for. If you can afford the bigger and more expensive team of lawyers, and are prepared to “play” the legal system to grind those who dare challenge you into the dirt, you can “win” the “game”. On this account, the courts aren’t really about justice, but power.
Let’s remind ourselves of who these people are. Tobacco companies such as BAT produce a product that when used as directed kills up to two out of three of its consumers. They have a decades-long history of deceiving and lying to the public. You may remember the film The Insider in which Russell Crowe plays Jeffrey Wigand, a tobacco company whistleblower. The portrayal of Wigand’s hounding and intimidation by Brown and Williamson, a US member of the international BAT group of companies, was not based on fantasy.
I really question the role of lawyers who work for tobacco companies. What else do they get out of it other than a whole heap of money and a huge hole in their moral gut? And if you have shares in tobacco companies you might want to rethink your investments. Tobacco companies aren’t too dissimilar to land mine manufacturers - they lop off limbs, only much more slowly.
On the Thursday before Christmas the Attorney General Rob Hulls announced that on the advice of the Victorian Government Solicitor, he has referred the documents in question to the Director of Public Prosecutions so that “he may investigate the allegation of criminal conduct”. This is very welcome.
The Director of Law and Regulation at the VicHealth Centre for Tobacco Control, Mr Jonathan Liberman, said “the evidence uncovered by the McCabe case has left a stain on the Victorian justice system, and the announcement is a good first step in addressing the damage that has been done.
We can’t turn a blind eye to the behaviour of BAT, nor can we ignore the intimidation of the daughter of a woman who has died from their products, or ignore the bullying of one of the most respected health groups in the country - just because BAT has so much money and power. This case must be about justice - not money and power.