After first winning, then losing on appeal, her case against British American Tobacco, Rolah McCabe got some posthumous justice in a recent US ruling. William Birnbauer was an insider in the closing chapter of a courtroom drama.
He says he loves the law because, like Andrew Beckett, the gay lawyer played by Tom Hanks in the movie Philadelphia, he believes that every once in a while you get to be part of justice being done. But today, Peter Gordon, a plaintiff lawyer for 25 years, is questioning his beliefs and even the law. He is slumped at the edge of a conference table, on the verge of tears.
"Life is not like movies," he says. "I've never got involved in a fight where justice was on my side and lost, and that's what I've just done. I don't know what to do and I'm confused about it. I'm genuinely confused about it."
Gordon, legal warhorse, is unravelling. An hour earlier, the High Court dismissed an appeal application he had lodged, ending a historic five-year legal struggle on behalf of the family of lung cancer victim Rolah McCabe. To Gordon, it appeared a disastrous finale to a case that had become personal. McCabe was dead, having succumbed to cancer; her husband, John, was dead, having died of a heart attack attributed to the stress of the case; four children had lost their parents; and once again it seemed that conservative institutions had sided with big business at the expense of the poor.
"Why do we always lose against tobacco companies?" he asks. "What does it mean that, no matter what the situation is, there's always some excuse for these appellate courts to chuck us out."
Experienced lawyers - Gordon has had several high-profile legal victories for victims of asbestos, faulty breast implants and contaminated blood among others - don't normally talk this openly in public. However, he had granted documentary filmmaker Terry Carlyon, sound recordist Keith Platt and me behind-the-scenes access to one of the most controversial legal battles this country has seen in recent times.
In a victory that made headlines internationally, McCabe, in April 2002, became the first Australian - and still the only one - to successfully sue a tobacco company. A jury awarded her $700,000 in damages after Victorian Supreme Court judge Geoffrey Eames struck out the defence of British American Tobacco, finding the company had deprived her of a fair trial by destroying damaging internal records.
The victory, however, was shortlived. BAT won an appeal and now, before a packed High Court, the tobacco company won again, with the court refusing both Gordon's and the Victorian and NSW Governments' application for a further appeal.
At an emotional debriefing immediately after the High Court decision, Gordon broke the news to McCabe's daughter, Roxanne Cowell: the case was over, she should bury her mum, so to speak.
What was unknown by Gordon or anyone else was that the McCabe case wasn't quite buried. In the months ahead, it would resonate in the corridors of Washington's District Court in the biggest civil lawsuit launched in the United States. Not only that, but it would unearth Australia's equivalent of Dr Jeffrey Wigand, the tobacco whistleblower played by Russell Crowe in the movie The Insider. But all that was to come.
"MEET me at the old North Melbourne footy ground in 20 minutes," Gordon told me in an unexpected phone call one afternoon. I had covered the McCabe court rulings and had met Gordon over the years but we weren't particularly close.
He gave no hint of what it was about. In the shadow of the empty grandstand, he said the most extraordinary thing had happened: he'd received a call from deep inside enemy territory - from BAT. Could this be real, he wondered? Was it a set-up? He wasn't sure what to do.
The message was from Frederick Gulson. Gordon knew of Gulson because his name was on several documents cited in McCabe's Supreme Court case and subsequent appeal. But Gulson had not given evidence, despite being the company secretary and legal counsel of W. D. & H. O. Wills (later BAT) at the time Gordon believed sensitive internal documents were shredded. Could it be that the insider was now an outsider? Should he call him back, Gordon asked. What would he say to him? How could he be sure it wasn't a trick? Was he being paranoid?
The thing to do, we agreed, was for Gordon to call Gulson and see what he wanted.
Fred Gulson, it turns out, is an eccentric. No longer a lawyer, he is the biggest producer of tea-tree oil in the southern hemisphere, with 55 million trees on his northern NSW property.
Astute and organised in business, Gulson, however, is not your stereotypical, conscience-driven whistleblower. Loud, larger than life and with a voracious appetite for food, wine and speed - he has seven cars including a Maserati - he sets a blistering pace in restaurant and on road.
He's fond of fine panama hats, white brand-name jeans, black Drug Enforcement Agency T-shirts and Cuban cigars. He keeps a snake in his office. He's clearly not easily intimidated and usually gets his way. Gulson contacted Gordon furious at what he regarded as a serious misrepresentation of his views in court submissions lodged during BAT's appeal against McCabe's $700,000 damages award.
Soon after the footy oval meeting, Gordon called him back and they spoke several times on the phone. As their relationship developed, Gordon and his offsider, Andrew Higgins, set about wooing him, slowly egging him on to disclose details of BAT's document-retention policy.
When at last they met, Gulson had with him letters between himself and lawyers for a senior Clayton Utz partner who had advised on the document policy. Gordon and Higgins were desperate to photocopy the correspondence but Gulson wouldn't allow it. However, he agreed that Higgins could copy the letters by hand.
Gordon takes up the story: "One thing about Andrew is that he has cerebral palsy, which affects one side of him, including his hand, but it doesn't affect his writing with his good hand. He's as good a writer and as quick a writer as anyone."
But, after five minutes, Gordon noticed that Higgins hadn't made much progress. Eventually Gulson, too, noticed this and exclaimed, "Jesus, you're a slow writer Andrew."
Gordon recalls: "Andrew looked up with these mournful brown eyes and said, 'Yeah . . . I'm sorry Fred, it's just that I've got cerebral palsy'. There's a moment of great embarrassment followed by Fred saying, 'Ahh bugger it, give them to me, I'll copy them for you.' He went out of the room to copy them and I looked at Andrew and said, 'You're kidding'."
Gordon now believed he had absolute proof that BAT's document policy was designed to clear the company files of damaging internal documents. Here, after all, was a former company secretary and legal counsel saying that Supreme Court judge Eames had got it right when he found that the main purpose of the policy was to provide a means of "destroying damaging documents under the cover of an apparently innocent house-keeping arrangement". After further negotiations, Gulson signed an explosive affidavit accusing BAT of sanitising documents that would be damaging if produced in litigation or if they became public.
"It was obvious to everyone in the know what the strategy was," he said.
As pertinent as the affidavit and Gulson's insider status were, they would never be considered by the High Court, which, to Gordon's frustration, refused to examine new evidence.
A WEARY-looking Gulson, wearing shorts and a yellow windcheater, listens attentively as Gordon and barrister Jack Rush, QC, prepare him for his deposition the next day. He is in a Washington hotel room, and the lawyers are determined to focus him on the task.
Gulson agreed to appear as a witness in a lawsuit in which the US Department of Justice accused Big Tobacco of fraud and racketeering over 50 years. At that stage - tobacco has since successfully appealed this penalty - the lawsuit aimed to claw back from tobacco companies $US280 million ($A369 million) of "ill-gotten" gains.
The stakes were high and the Department of Justice, which prosecuted the case, regarded Gulson as a star witness. Not only had he been senior at BAT, but his evidence went to the heart of what the tobacco company knew about smoking and health, as distinct from what it told the public.
Rush and Gordon want to give him a last-minute workout. Rush, leaning over Gulson, snaps: "You got sacked by (BAT affiliate) W.H. & H.O. Wills?"
Gulson: "Yes."
Rush: "And you got sacked because you weren't doing your job properly . . .
Gulson: "Is that right?"
Rush: "Well, you tell me, I'm putting it to you . . ."
Gordon, who has been listening intently, winces and says: "You're coming across at the moment as very argumentative."
Rush: "There will be the question that comes along where you can hit them over the fence. Use it, but use it, you know, discreetly . . . and you don't need to be a smart-arse."
Contrite, Gulson mutters, "OK".
His performance during an exhausting 11-hour deposition left Washington lawyers stunned. US Department of Justice attorneys swear they'd never seen or heard anything remotely like it before. Never heard two "f---ks" and one "a---hole" used in testimony before. Suffice to say that, sitting opposite half a dozen top-flight lawyers acting for the world's big tobacco companies, it took only minutes for Gulson to challenge them in an extraordinary test of strength.
The scene opens our documentary, The Big Lie. For Gordon, the deposition, and later Gulson's evidence at the trial, were a harrowing, white-knuckle ride, much like his ride with Gulson driving his army-style Hummer across Sydney Harbour Bridge. That day, Gordon was convinced he'd be decapitated as the open vehicle sped towards a barrier.
"He nailed it," says Gordon of Gulson's evidence. "He's an eccentric man, but for all of those eccentricities you've got to take your hat off to him. He did it and he did it for the right reasons . . . we got him across the line."
Today, the US case is mired in controversy. After tobacco companies won an appeal against a possible $US280 billion penalty, it was expected the Justice Department would seek $US130 billion for smoking cessation programs. However, only $US10 billion was sought, prompting claims that senior Bush administration officials, including a former tobacco lawyer, pressured the Department of Justice to slash the remedy amount. Democrats Henry Waxman, Edward Kennedy and others have called for an inquiry. The judge is considering her verdict.
www.bbc.co.uk
