THE CONTROVERSIAL affidavit of whistleblower Frederick Gulson looks to be the only salvation for legal counsel seeking to put the squeeze on British American Tobacco (BAT) and lawyers implicated in the McCabe case.
Following last week’s emphatic denial of leave to appeal to the High Court, options facing McCabe’s lawyers are limited to bringing the case back before the Supreme Court for a full trial on the facts or attempting to again strike out BAT’s defence.
The latter would essentially involve a replication of arguments, which were rejected by the Victorian Court of Appeal and a three-member bench of the High Court. However, subsequent allegations and admissions of document destruction within BAT from former legal counsel Gulson and US counterpart David Schechter, would now be relied upon.
Those evidentiary weapons were unavailable to aid McCabe’s lawyers, Slater & Gordon, at last week’s leave to appeal hearing because they were not in existence when the matter commenced.
Junior counsel assisting the appellant, John Gordon, said he knew of no other whistleblowers.
“But what more do you need? We have the former legal counsel swearing in an affidavit that BAT destroyed documents. I would have thought that as far as it goes, that’s all the evidence you’d need,” he said.
The enormous costs incurred by completed legal action is understood to be weighing heavily against the McCabes continuing on, although there is nothing to prevent a separate plaintiff, similarly inclined, attempting to replicate her initial success before Justice Eames in the Supreme Court early last year.
Gordon, also president of the Australian Plaintiff Lawyers Association (APLA) was “very disappointed” with the result and admitted to feeling no conflicting emotions about his criticism of the bench’s verdict.
“The High Court of Australia today decided that the McCabe case is too difficult to determine. In doing so, they have signalled to other corporations that have harmed consumers that they too can destroy incriminating documents and get away with it,” he said.
According to those present at the hearing, the judgment — delivered by Chief Justice Murray Gleeson with the consent of Justices Gummow and Heydon — only lasted five minutes or so and was presented after deliberations of less than half an hour.
It emphatically denied leave to appeal on the grounds submitted by McCabe’s lawyers, which included the case’s significance to administration of justice generally and implied waiver of legal professional privilege.
“No, there wasn’t much of a ray of hope there,” said Gordon, before adding: “Maybe they did, perhaps I’m just viewing things a little pessimistically at the moment.”
The denial also skittled applications from the NSW and Victorian Attorneys-General to intervene in the case. The latter responded by saying it would “investigate what other avenues were open”.
Asked if such options included ordering a judicial review of the concerns raised by the case, a spokesperson said: “We’re not ruling anything in or out at the moment.”
Late last year NSW A-G Bob Debus altered the Legal Profession Act to include penalties for document destruction. His department did not return Lawyers Weekly’s calls.
David Fagan, chief executive partner of Clayton Utz, the top-tier law firm found to have advised BAT to destroy documents by Eames, declared: “The judicial process on these matters has now been exhausted.”
Stuart Westgarth from Corrs Chambers Westgarth, which successfully represented BAT, was unable to comment, while his client’s spokesman, John Galligan, welcomed the decision.
Victorian Legal Ombudsman Kate Hammond, whom it is understood investigated the conduct of Clayton Utz and other lawyers in the wake of Eames’ findings said she was not allowed to reveal what effect the High Court’s decision would have on her office’s approach to the matter.