Vic: Tobacco giant loses appeal against documents

AAP General News (Australia)
12-14-2007
Vic: Tobacco giant loses appeal against documents

By Shelley Markham

MELBOURNE, Dec 14 AAP - The family of Victorian woman that won, then lost, a damages
action against the tobacco multi-national she blamed for her lung cancer is a step closer
to reopening her case.

Shortly before she died in 2002, Rolah McCabe, 53, sued British American Tobacco Australia
Services (BATAS) for damages in a case won after her death when a Victorian Supreme Court
case awarded damages of $700,000.

But the decision was overturned by the Court of Appeal in December 2002, and Ms McCabe's
estate was ordered to pay more than $2 million of BATAS' legal costs - a demand that would
bankrupt her estate.

In July this year Justice David Byrne cleared the way for the McCabe family and law
firm Slater and Gordon to use hundreds of confidential BATAS documents in a bid to reopen
a case against the tobacco company.

Mrs McCabe's daughter and executor of her estate, Roxanne Cowell, wants to use the
disputed documents to prove BATAS and its lawyers acted illegally.

BATAS went to the Court of Appeal seeking orders to prevent the documents being used
against it to revive the case.

One of the disputed documents was an internal inquiry that found two of law firm Clayton
Utz's partners engaged in serious misconduct in order to defeat Mrs McCabe's original
claim.

Victorian Court of Appeal judges Alex Chernov, Geoffrey Nettle and Marilyn Warren ruled
today that the McCabe family's lawyers could use the documents.

"We consider that BATAS would suffer no relevant prejudice if his Honour's (Justice
Byrne) orders were to stand such that the respondents (McCabe family) could use the BATAS
information for the purpose of preparing their defence in the proceeding," Justice Warren
said.

Outside court the McCabe family's lawyer Leon Zwier said the decision paved the way
for the family to reopen the case against BATAS.

"The McCabe family is obviously very pleased with the Court of Appeal's decision today,"

Mr Zwier said.

"It takes away some of the delay.

"The hope is that we will be able to move on with expedition.

"This litigation will proceed, and hopefully it will proceed on a speedy timetable
going forward."

BATAS lawyers said today that they would consider appealing the decision in the High Court.

AAP sam/ce/jt/mn

KEYWORD: MCCABE

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