British American Tobacco Australia Services Ltd v. Cowell
This case is one of several cases following from McCabe v British American Tobacco Australia Services Limited [2002] VSC 73. In that case, Eames J struck out BATAS's defence because his Honour concluded that BATAS had deliberately destroyed prejudicial documents pursuant to its "Document Retention Policy" with the intention of preventing the plaintiff from having a fair trial (although Eames J's judgment was subsequently overturned by the Court of Appeal: British American Tobacco Services Ltd v Cowell [2002] VSCA 197).
Following that case, the plaintiff's solicitor had received requests from the US Department of Justice and the Australian Competition and Consumer Commission for copies of the documents BATAS had produced during the litigation. The plaintiff applied to the Court for a declaration to the effect that it could release those documents as requested - that is, it applied for a declaration that the documents were not subject to the "implied undertaking" (the "implied undertaking" prevents parties to litigation from using documents obtained through a coercive Court process for purposes other than the litigation itself).
The procedural history of this case is somewhat complex. There were 38 relevant documents in the original McCabe proceeding, over which Eames J ruled that legal professional privilege had been waived. The Court of Appeal overturned that ruling, finding that privilege had not been waived over 32 of the 38 documents, upon which documents Eames J had based much of his decision. On that basis the Court of Appeal found that his Honour's reasoning for striking out the defence could not stand.
In the meantime, however, the original hearing of this application in relation to release of the documents had already been heard. The Court below ruled that the documents could be released (i.e. the implied undertaking did not apply) on the basis of Eames J's finding that privilege had been waived.
This was the hearing of the appeal against that judgment. The Court of Appeal was therefore dealing with the application on a different basis to the Court below (i.e. that privilege had not been waived over the 32 documents). That, in itself, would have been sufficient for the Court of Appeal to conclude that the 32 documents could not be released (and the other 6 documents seemed to it, in any event, to be innocuous). However, given that the plaintiff in the original proceeding had applied for special leave to appeal to the High Court, the Court of Appeal went on to set out its comprehensive reasons for decision.
The Court of Appeal found that, regardless of whether the documents were privileged or not, the 38 documents were subject to the implied undertaking and could not be used for purposes other than the original proceedings. Further, in relation to the 6 documents over which it agreed that privilege had been waived (and notwithstanding its view that they were "pretty innocuous"), the Court observed that it was being asked to hand over documents "without rhyme or reason" and saw no reason to do so. The requests in the letters were too vague and therefore did not assist.
British American Tobacco Australia Services Ltd v Cowell (as representing the estate of Rolah Ann McCabe, deceased) [2003] VSCA 43
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"In this instance, the documents in question were not produced only by the appellant itself; they were produced also by its solicitors in response to subpoenas duces tecum. As such, the documents were still "personal and private" to the appellant, relating in the main to legal advice being sought and tendered. It is unnecessary in this case to consider how far protection might be afforded when the documents are produced by someone altogether independent of the parties: obviously the more tenuous the connection between the person producing the document and the party concerned to
seek protection, the less likely it is that the document will contain information personal to the party or private in nature. But if the document does contain material personal to the affairs of the party which is of a private or confidential nature, then, no matter by whom produced, the implied undertaking will ordinarily be important to the party and its enforcement of concern. In such circumstances, we see no reason why, if it once attaches, the implied undertaking should not endure despite the tender of the document in evidence against the party seeking protection. The fact that, by reason of its tender, it has passed into "the public domain" may be a consideration when leave is sought to use the document otherwise than for the purposes of the litigation in which it was produced, but it does not per se gainsay the continuance of the undertaking. The distinction between the use that may be made of the document by a stranger to the litigation who encounters the document in the public domain and the use that may be made of it by a party to whom it has been disclosed involuntarily in the course of the proceeding has already been explored."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
This case is one of several cases following from McCabe v British American Tobacco Australia Services Limited [2002] VSC 73. In that case, Eames J struck out BATAS's defence because his Honour concluded that BATAS had deliberately destroyed prejudicial documents pursuant to its "Document Retention Policy" with the intention of preventing the plaintiff from having a fair trial (although Eames J's judgment was subsequently overturned by the Court of Appeal: British American Tobacco Services Ltd v Cowell [2002] VSCA 197).
Following that case, the plaintiff's solicitor had received requests from the US Department of Justice and the Australian Competition and Consumer Commission for copies of the documents BATAS had produced during the litigation. The plaintiff applied to the Court for a declaration to the effect that it could release those documents as requested - that is, it applied for a declaration that the documents were not subject to the "implied undertaking" (the "implied undertaking" prevents parties to litigation from using documents obtained through a coercive Court process for purposes other than the litigation itself).
The procedural history of this case is somewhat complex. There were 38 relevant documents in the original McCabe proceeding, over which Eames J ruled that legal professional privilege had been waived. The Court of Appeal overturned that ruling, finding that privilege had not been waived over 32 of the 38 documents, upon which documents Eames J had based much of his decision. On that basis the Court of Appeal found that his Honour's reasoning for striking out the defence could not stand.
In the meantime, however, the original hearing of this application in relation to release of the documents had already been heard. The Court below ruled that the documents could be released (i.e. the implied undertaking did not apply) on the basis of Eames J's finding that privilege had been waived.
This was the hearing of the appeal against that judgment. The Court of Appeal was therefore dealing with the application on a different basis to the Court below (i.e. that privilege had not been waived over the 32 documents). That, in itself, would have been sufficient for the Court of Appeal to conclude that the 32 documents could not be released (and the other 6 documents seemed to it, in any event, to be innocuous). However, given that the plaintiff in the original proceeding had applied for special leave to appeal to the High Court, the Court of Appeal went on to set out its comprehensive reasons for decision.
The Court of Appeal found that, regardless of whether the documents were privileged or not, the 38 documents were subject to the implied undertaking and could not be used for purposes other than the original proceedings. Further, in relation to the 6 documents over which it agreed that privilege had been waived (and notwithstanding its view that they were "pretty innocuous"), the Court observed that it was being asked to hand over documents "without rhyme or reason" and saw no reason to do so. The requests in the letters were too vague and therefore did not assist.