Cancer case: judge stays

A NSW Court of Appeal judge has found British American Tobacco caused ”a real risk of a diminution of public confidence in the administration of justice” by attempting to remove a judge hearing a cancer compensation case against it.

Upholding the challenge would have created a public perception that the company had ”manipulated the system in the hope of obtaining a more favourable outcome from a different judge”, said Justice John Basten. British American Tobacco wanted Judge Jim Curtis disqualified from hearing a case in the Dust Diseases Tribunal seeking compensation for lung cancer caused by both asbestos and tobacco.

The company claimed Judge Curtis could not bring ”an impartial and unprejudiced mind” because in a different case in 2006 he made a pre-trial finding of dishonesty by British American Tobacco for concealing why it destroyed documents relating to the toxicity of its products.

Justice Basten and Justice Murray Tobias last week dismissed the appeal.

Justice James Allsop dissented and said that in 2006 Judge Curtis had disclosed ”an actual persuasion of the mind that the applicant [British American Tobacco] was sufficiently morally delinquent to have its actions characterised as dishonest and fraudulent”.

”In my view, a fair-minded lay observer might reasonably think that a trial judge might not be able to eradicate the effect of this conclusion from his or her mind in attempting to deal fairly and impartially with the issue on a later occasion,” Justice Allsop said.

In the 2006 case, Judge Curtissaid the company had destroyed prejudicial documents for the purpose of suppressing evidence in anticipated litigation and that it ”dishonestly concealed this purpose by pretence of a rational non-selective housekeeping policy”.

Similar issues about destruction of documents have been pleaded in a claim before Judge Curtis seeking compensation for the terminal illness of Donald Laurie, a boilermaker who died in 2006, aged 68.

Mr Laurie’s widow, Claudia, is also suing the Royal Australian Navy, which employed Mr Laurie in the 1960s, and the alleged supplier of asbestos used in its ships, a former James Hardie subsidiary.

Ms Laurie has foreshadowed calling as a witness British American Tobacco Australia Services’ former in-house lawyer, Fred Gulson, whose evidence was central to the 2006 ruling.

Justice Tobias said Judge Curtis had emphasised that the company had not called witnesses to dispute Mr Gulson’s evidence. ”The hypothetical fair-minded observer would … understand that, perhaps for perfectly proper tactical reasons, BATAS had decided not to call evidence … which it might well call at trial, thus putting a completely different complexion on the issue of BATAS’s document management policies,” he said.


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