THE NSW Court of Appeal has been asked by British American Tobacco to remove a Dust Diseases Tribunal judge from hearing a landmark claim that smoking and asbestos jointly caused lung cancer.
The company argued yesterday that Judge Jim Curtis should be disqualified because of a pre-trial ruling he made in a similar case in 2006 about its destruction of documents.
The ruling was in an asbestos-tobacco compensation claim brought by a Wollongong motor mechanic, Allan Mowbray, which settled before trial.
It related to British American Tobacco‘s so-called ”document retention policy” first raised in a tobacco compensation case brought by a Melbourne smoker, Rolah McCabe.
Judge Curtis denied British American Tobacco the benefits of legal professional privilege in the Mowbray case, saying 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”.
John Sackar, QC, for British American Tobacco, said yesterday that Judge Curtis would have to ”hear the matter all over again” in a case he began hearing in March 2006.
The plaintiff, Donald Laurie, died at the age of 68 in May 2006 and his widow, Claudia Jean Laurie, has continued the case on behalf of her husband’s estate.
Ms Laurie has foreshadowed calling as a witness Fred Gulson, the former in-house lawyer for British American Tobacco Australia Services.
In the Mowbray case, ”Mr Gulson was the man who fingered British American Tobacco on document destruction,” Mr Sackar said.
Under the legal test of ”apprehended bias” Judge Curtis might not be seen by ”a fair-minded lay observer” as bringing an impartial mind to the Laurie case, he said.
British American Tobacco is appealing against Judge Curtis’s refusal in May to disqualify himself, when he said his pre-trial ruling on privilege in the Mowbray case was ”far from” expressed in terms of finality.
”I took pains to recognise that the assertions … as to a document destruction policy remained a live issue for the trial, that the evidence of Mr Gulson had not been tested in cross-examination, and that there may be good reasons why BATAS, in an interlocutory proceeding, did not wish to take issue with, nor call evidence to contradict, Mr Gulson,” the judge said.
Ms Laurie is claiming aggravated damages from the company on the basis that it knew that smoking Marlboro tobacco products could cause lung cancer, and that it intentionally destroyed documents tending to prove this knowledge to put those documents beyond the reach of litigants.
The other defendants are a former James Hardie subsidiary alleged to have supplied asbestos products to Mr Laurie’s workplaces and the navy, which employed him as an engine-room stoker in the 1960s.
Ms Laurie has previously indicated she might put her case on hold pending the outcome of further legal proceedings relating to document destruction in the McCabe case in Victoria.
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