Australia: British American Tobacco succeeds in disqualifying a Dust Diseases Tribunal Judge on the grounds of earlier decision relating to the "Document Retention Policy"

British American Tobacco Australia Services Limited v Laurie [2011] HCA 2
Last Updated: 16 February 2011
Article by David Chong

British American Tobacco succeeds in disqualifying a Dust Diseases Tribunal Judge on the grounds of earlier decision relating to the "Document Retention Policy"

Judgment date: 9 February 2011

British American Tobacco Australia Services Limited v Laurie [2011] HCA 2

High Court of Australia1

In Brief

  • Overturning the decision of the NSW Court of Appeal, the majority of the High Court disqualified a judge of the Dust Diseases Tribunal from hearing a case involving British American Tobacco based on an interlocutory ruling delivered in a previous matter.


Donald Laurie commenced proceedings in the Dust Diseases Tribunal of New South Wales against British American Tobacco Australia Services Limited (BATAS) alleging that BATAS was negligent in manufacturing and supplying tobacco products used by Mr Laurie. Claudia Laurie was substituted as the plaintiff in the proceedings following the death of her husband.

In support of a claim for aggravated damages, it was also alleged that BATAS had a policy of destroying documents in its possession which might have evidenced its negligence and that the correct inference to be drawn was that at all material times, BATAS knew or ought to have known that the use of its tobacco products was capable of causing lung cancer.

In 2009, Curtis J delivered an interlocutory judgment in Brambles Australia Ltd v British American Tobacco Australia Services Ltd; Re Mowbray (No 8)2 whereby his Honour heard evidence from Mr Gulson who had been Company Secretary and in-house solicitor for BATAS, regarding the implementation of the Document Retention Policy. His Honour stated that:

"I am persuaded on the present state of the evidence that BATAS in 1985 drafted or adopted the Document Retention Policy for the purposes of a fraud within the meaning of s 125 of the Evidence Act." 3

As a result of the comments made by Curtis J in the interlocutory judgment in Re Mowbray, BATAS made an application that he disqualify himself from the Laurie proceedings. Curtis J refused the recusal application stating that:

"I do not believe that, having read my published reasons in Re Mowbray, any reasonable observer might entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the questions of whether Mr Gulson is a witness of truth, and whether or not BATAS engaged in a dishonest document destruction policy." 4

Court of Appeal Decision

BATAS filed two summonses in the NSW Court of Appeal which, by majority (Tobias and Basten JJA, Allsop P dissenting), were dismissed on the basis that a fair-minded lay observer would not reasonably apprehend, as a result of the previous interlocutory finding, that Curtis J may not bring an impartial and unprejudiced mind in Mrs Laurie's proceedings to the question whether BATAS had committed a fraud.

Basten and Tobias JJA were both of the opinion that Curtis J had qualified his earlier interlocutory judgment, which had not been determined on a final basis, by stating that his ruling was based on the evidence that was before him - inferring that upon different or other evidence which may have been adduced at trial, a different conclusion may have been drawn.

Allsop P dissented, stating that Curtis J had made a relevantly unqualified finding of dishonesty and fraud. 5

Majority Decision of the High Court

Heydon, Kiefel and Bell JJ delivered a joint judgment, overturning the majority decision of the NSW Court of Appeal.

BATAS relied on the High Court decision of Livesey v New South Wales Bar Association6 and submitted that the majority in the Court of Appeal wrongly attributed an overly sophisticated understanding of the rules of evidence to the lay observer.

The majority of the High Court stated that the apprehended bias test is concerned with the appearance of bias and not the actuality of bias. It is therefore the perception of the hypothetical observer that provides the yardstick. It then stated:

"At issue is not the incautious remark of 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." 7

The majority of the High Court referred to the following extract from Curtis J's ruling in Re Mowbray regarding the evidence of Mr Gulson and BATAS' Document Retention Policy: 8

"This is direct evidence, which has not been challenged or contradicted. In the absence of evidence from BATAS I find it difficult to understand how it was thought necessary that three English lawyers attend a scientific library to implement a Document Retention Policy which only permitted destruction of documents which were not 'valuable business documents'. 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? This may be explained at trial; however, the evidence of Mr Gulson gives rise to an obvious inference that has not yet been rebutted by BATAS."(emphasis added) 9

It was stated that the force of his Honour's rhetorical question was not lessened by his concluding sentence. A reasonable observer could not disregard the fact that his Honour expressed himself in terms indicating extreme scepticism about BATAS' denials.

The majority of the High Court allowed the appeal, prohibiting Curtis J from further hearing or determining the Laurie proceedings.

Dissenting Decisions of the High Court

French CJ and Gummow J wrote separate dissenting judgments to the effect that Curtis J had sufficiently qualified his ruling in the Re Mowbray proceedings.

At the outset of French CJ's judgment, he included the following comment of Mason J in Re JRL; Ex parte CJL10:

"It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party."

French CJ referred to several extracts from his Honour's ruling where Curtis J made it clear that his ruling was purely based on the evidence which was made available to him at the time. He stated:

"In the event, Judge Curtis made orders for further discovery by BATAS. The message conveyed by the repeated qualification in his Honour's findings was clear. Upon different or other evidence, which might be adduced at trial, a different conclusion might be drawn. No fair-minded lay observer could have overlooked that message." 11

As part of his judgment, Gummow J referred to the timeliness of BATAS' recusal application. The interlocutory judgment of Curtis J in Re Mowbray was delivered in May 2006 and the Laurie proceedings had been before the Tribunal on a number of occasions subsequent to that ruling without BATAS making any recusal application. It was not until December 2007 that the solicitor for BATAS raised the possibility of a recusal application.

However, the solicitors for Mrs Laurie made no submissions to the High Court that BATAS' delay in bringing the recusal application amounted to a waiver of BATAS' rights. It was not submitted that delay was a circumstance which would justify the refusal of relief in the event that the apprehension of bias rule was engaged. French CJ and Gummow J both dismissed the appeal.


Both the majority and the minority judgments confirm that the principles to be adopted in identifying apprehended bias are those set out in Johnson v Johnson. 12 However, the majority appear to distinguish Johnson v Johnson13 on the basis that the instant case was unusual because it related to findings of fraud.

Given the split decision of the Court of Appeal and the split decision of the High Court, it is quite possible that this case may have had a different outcome if heard by the full bench of the High Court.

It is not clear at this stage whether or not BATAS will make recusal applications in future matters in which Curtis J is the presiding judge.

1 French CJ, Gummow, Heydon, Kiefel and Bell JJ

2 Brambles Australia Ltd v British American Tobacco Australia Services Ltd; Re Mowbray (No 8) [2006] NSWDDT 15

3 Brambles Australia Ltd v British American Tobacco Australia Services Ltd; Re Mowbray (No 8) [2006] NSWDDT 15 at 602

4 Laurie v Amaca Pty Ltd [2009] NSWDDT 14 at 22

5 British American Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414 at 8-10

6 Livesey v New South Wales Bar Association [1983] HCA 17

7 At 140

8 At 142

9 Brambles Australia Ltd v British American Tobacco Australia Services Ltd; Re Mowbray (No 8) [2006] NSWDDT 15 at 601-602

10 Re JRL; Ex parte CJL [1986] HCA 39

11 At 16

12 Johnson v Johnson [2000] HCA 48

13 Johnson v Johnson [2000] HCA 48

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