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 fibers 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 skepticism 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.
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.
The tobacco industry may have perpetrated a fraud upon the public or the courts by presenting false information or deliberately hiding known-facts.
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.
"Of course judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence. Trial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence. Routine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding. This is not a case of that kind. It does not raise considerations of case management and the active role of the judge in the identification of issues with which Johnson was concerned. At issue is not the incautious remark or expression of a tentative opinion but the impression reasonably conveyed to the fair-minded lay observer who knows that Judge Curtis has found that BATAS engaged in fraud and who has read his Honour's reasons for that finding. Some further reference should be made to those reasons. His Honour drew inferences adverse to BATAS from the appearance of the policy adopted in 1985, styled the "Amatil Ltd Policy on Document Retention/Destruction" (Amatil being BATAS's former name). Judge Curtis described this policy as "a model of brevity." In context this was not an encomium. His Honour considered that it was remarkable that BATAS had replaced a long-standing detailed policy comprised of 45 pages, which prescribed mandatory retention and destruction periods for documents falling within each of 14 categories, with the 1985 policy. He noted that the 1985 policy, in two pages, reduced the categories of documents to three, of which the third, "valuable business documents ... in the sense that the business cannot do without it", was subject to the direction that these were to be retained only after the document had been "carefully reviewed to establish that it is truly valuable."
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.
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 fibers 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 skepticism 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".