find the latest legal job
Senior Associate - Litigation & Dispute Resolution
Category: Litigation and Dispute Resolution | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Come work for a firm ranked in Lawyers Weekly Top 25 Attraction Firms
View details
Associate - Workplace Relations & Safety
Category: Industrial Relations and Employment Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Employer of choice · Strong team culture
View details
Freelance Lawyers
Category: Banking and Finance Law | Location: All Perth WA
· Freelance opportunities through Vario from Pinsent Masons
View details
Freelance Lawyers
Category: Other | Location: All Adelaide SA
· • Qualified lawyer with a strong academic background
View details
Freelance Lawyers
Category: Other | Location: All Melbourne VIC
· • Qualified lawyer with a strong academic background
View details
BATtered hopes pinned on Gulson

BATtered hopes pinned on Gulson

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…

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.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

BATtered hopes pinned on Gulson
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Oct 23 2017
How to fail well
The legal profession is due for an attitude adjustment when it comes to perceived failures, accordin...
Oct 23 2017
Lawyers slam rushed consultation for SA repeat offenders bill
The Law Society of South Australia has expressed concern for a proposal to roll out new laws amendin...
Oct 23 2017
The pursuit of happiness in the law
A panel of legal experts have explored how to define success in the legal profession, and how lawyer...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...