Australia

The plaintiff was continuing proceedings against British American Tobacco Services Australia Ltd (BATAS) which were 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 fibres 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, she alleged 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 the alleged intentional destruction of prejudicial documents by BATAS. In granting further discovery, Judge Curtis ruled that he was persuaded, on the evidence as it then was, that in 1985 BATAS had 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 the Laurie 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).

This was the hearing of BATAS's application for leave to appeal Judge Curtis's decision and for prohibition of his further hearing the case. By majority, the Court of Appeal refused BATAS's application (Tobias and Basten JJA, Allsop P dissenting). The majority of the Court found that a fair-minded lay observer would not reasonably apprehend that Judge Curtis might not bring an impartial and unprejudiced mind to whether BATAS had committed a fraud as a result of his judgment in the Mowbray case. This was because Judge Curtis's earlier decision was made on an interlocutory basis, was not accompanied by objectionable or emotive language, and it was expressed in qualified and guarded terms.

This decision was over-turned by the High Court (see: British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283).