Decision removes judge from tobacco case

BRITISH AMERICAN TOBACCO has succeeded in having a Sydney judge removed from hearing a cancer compensation case involving allegations it intentionally destroyed documents.

The case, an uncommon claim that lung cancer was caused by both tobacco and asbestos, will be allocated to a different judge in the NSW Dust Diseases Tribunal following a High Court decision on the appearance of judicial bias.

The new judge's task will include deciding whether British American Tobacco Australia Services intentionally destroyed evidence that it knew its products caused cancer.

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The company's ''document retention policy'' is also the subject of Victorian proceedings revisiting a landmark compensation case brought by the late Rolah McCabe.

By a 3-2 majority, the High Court ruled yesterday that ''a reasonable observer might possibly apprehend'' that Judge Jim Curtis might not approach the document destruction allegations impartially because of his pre-trial finding of fraud by British American Tobacco in an unrelated compensation case in 2006, also involving both tobacco and asbestos.

That case settled before the main trial and two months after Judge Curtis ruled the company was not entitled to claim legal professional privilege over its documents because of evidence from its former in-house lawyer, Fred Gulson, that it dishonestly concealed its selective destruction of material indicating its knowledge of the health dangers of smoking.

British American Tobacco denied the allegations but chose not to challenge Mr Gulson's evidence at pre-trial hearings.

In joint reasons published yesterday, Justices Dyson Heydon, Susan Kiefel and Virginia Bell said that ''while the judge did not use violent language, he did express himself in terms indicating extreme scepticism about BATAS's denials and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge, and that the nature of the fraud about which the judge had been persuaded was extremely serious''.

They singled out Judge Curtis's comments about evidence that a British firm of solicitors had sent three lawyers to Australia to ensure the implementation of the British parent company's document policy. ''If BATAS was not selectively destroying scientific documents prejudicial to its position in future litigation, how is it that lawyers rather than scientists were assigned to judge the value of research material?'' Judge Curtis said.