British American Tobacco Australia Services Ltd. v. Laurie

The plaintiff was continuing proceedings against British American Tobacco Services Australia Ltd (BATAS) commenced by her late husband, Donald Laurie. Mrs Laurie alleged that her husband died from carcinoma of the lung caused by his exposure to asbestos fibres in the course of his employment and by smoking tobacco products. Mrs Laurie alleged that BATAS knew that the smoking of its tobacco products could cause lung cancer; and, further, that pursuant to its "Document Retention Policy" it intentionally destroyed documents that tended to prove this knowledge with the intention of putting those documents beyond the reach of plaintiffs.

The judge originally assigned to this case, Judge Curtis, was presiding over similar but unrelated proceedings: the "Mowbray proceedings". Mr Mowbray died from cancer allegedly caused by his exposure to asbestos when he worked for the defendant company, Brambles. Brambles alleged that in fact Mr Mowbray's cancer was caused by him smoking cigarettes manufactured by BATAS and therefore sought contribution or indemnity from BATAS. In those proceedings, Brambles had applied for further discovery from BATAS referring to its alleged intentional destruction of prejudicial documents. In granting further discovery, Judge Curtis ruled that he was persuaded, on the evidence as it then was, that in 1985 BATAS drafted or adopted the "Document Retention Policy" for the purpose of a fraud within the meaning of s125 of the Evidence Act (see: Brambles Australia Ltd v British American Tobacco Australia Services Ltd; Re Mowbray (No 8) [2006] NSWDDT 15; (2006) 3 DDCR 580).

Subsequently, in these proceedings, BATAS sought for Judge Curtis to disqualify himself on the basis of apprehended bias, due to his ruling about the "Document Retention Policy" in the Mowbray proceedings. Judge Curtis dismissed that application (see: Laurie v Amaca Pty Ltd [2009] NSWDDT 14). BATAS applied for leave to appeal Judge Curtis's decision to the Court of Appeal and for prohibition of his further hearing the case. The Court of Appeal also refused BATAS's application (see: British American Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414).

This was the hearing of the appeal from that decision. By majority, the High Court reversed the decision of the Court of Appeal (Heydon, Kiefel and Bell JJ; French CJ and Gummow J dissenting). The majority found that, with respect to Judge Curtis's finding in the Mowbray proceedings, a reasonable observer might possibly apprehend that he would not bring an impartial mind to the issues in this case. Although in the Mowbray case Judge Curtis had noted that different evidence might alter his conclusion, and he had not used violent language, he did indicate extreme scepticism about BATAS's denials. Further, the nature of the fraud that Judge Curtis had ruled about was extremely serious. The High Court therefore prohibited Judge Curtis from further hearing this case.

Note: the transcripts of BATAS's special leave application and the hearing before the High Court appear here under "Related Documents".


British American Tobacco Australia Services Ltd. v. Laurie [2011] HCA 2 (9 February 2011); (2011) 242 CLR 283.

  • Australia
  • Feb 9, 2011
  • High Court of Australia



  • Amaca Pty Limited (under NSW External Administration)
  • Claudia Jean Laurie (as administratix of the estate of the late Donald Henry Laurie and on her own behalf))
  • Commonwealth of Australia

Defendant British American Tobacco Australia Services Limited

Legislation Cited

Dust Diseases Tribunal Act 1989

Supreme Court Act 1970

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product