The Case Of The Disappearing Documents - please explain, Ms. Bishop

 

On 18 November 2012 Deputy Opposition Leader Julie Bishop publicly demanded an investigation into the disappearance of documents relating to the Australian Workers Union.

Ms. Bishop was quoted in ABC TV Lateline program on 28 November 2012 in relation to the same union matter:

 

I'm the Deputy Leader of the Opposition and I happen to be a lawyer with 20 years experience - as a practising lawyer at this relevant time but obviously in another firm.

 

As Ms. Bishop is obviously happy to refer to her West Australia employment history between 1983 and 1998, perhaps she might like to explain what she knew of another case of disappearing documents as set out below.

 

A situation whose genesis appears to be within the time frame she was reputedly a solicitor/ associate with Robinson Cox and later a managing partner in Clayton Utz (West Australia) and, during a time when these law firms undertook work on behalf of the owner/operators of the Wittenoom blue asbestos mine (including CSR Limited) and on behalf of W.D. & H.O. Wills (Australia) Limited  in the matter of Gallagher v CSR Limited, Supreme Court of Western Australia, 31 March 1994.

With Ms. Bishop most notably appearing for CSR in matters relating to Barrow & Heys v CSR Ltd & Midalco Pty Ltd, Supreme Court of Western Australia, Rowland J, 4 August 1988.  

 

McCabe V British American Tobacco Australia Services Limited [2002] VSC 73 (22 March 2002):

19. I have no doubt that the Document Retention Policy which was put in place did have some quite legitimate management and administrative purposes and benefits, and the documents contained much material relevant to such functions. I am, however, entirely satisfied that the primary purpose of the development of the new policy in 1985 and subsequently was to provide a means of destroying damaging documents under the cover of an apparently innocent house-keeping arrangement. When regard is had to the background material relating to the origins of the new policy, and the critical role played by litigation lawyers in its development and implementation, it is clear that the post-1985 policy documents reflect the acute consciousness of their authors (and explain their attempts to disguise the fact) that the Document Retention Policy was primarily directed towards the risks of litigation.

20. In 1985 the defendant turned attention to the prospects of litigation in Australia, and to the potential for the defence of any such litigation to be prejudiced by the disclosure of embarrassing documents. The firm of Clayton Utz was engaged to advise the company as to that issue and on 30 December 1985 a written Document Retention Policy came into effect. Mr Eggleton of Clayton Utz, who gave evidence before me, denied that his firm had drafted that policy, and it seems that a draft was first written by one Mr R. N. Paton, the in-house solicitor for Amatil Limited, but there is no doubt that the draft was considered and approved by Clayton Utz prior to its implementation. The firm also gave advice as to other strategies, including the enhancement and expansion of claims of legal professional privilege, with the same objective of minimising the prospect of any plaintiff gaining the benefit of damaging documents. As I will shortly discuss, a solicitor, Andrew Foyle, from the English firm Lovell White Durrant, was engaged by BATCO for purposes of addressing policy on document handling. He produced a memorandum setting out the development of the Document Retention Policy, which expressed the clear understanding that it was Clayton Utz that was responsible for the critical terms of the policy formulation.

21. I have not been shown a document which is agreed to comprise the 1985 written policy, but in legal advice written by Brian Wilson, a partner of Clayton Utz, dated 29 March 1990 (to which I will shortly refer), he noted that at page one there were a series of statements inserted into the document which asserted innocent purposes for the destruction of documents, under broad headings of cost efficiency, litigation support and sabotage prevention.

ABC TV Four Corners 10 June 2002:

 

But Justice Eames ruled that the 1990 strategy devised by Wilson PROPOSED destruction of documents.

While Clayton Utz did not act for British American Tobacco for some years after 1990, the judge went on to say: "That strategy has been pursued since that advice was given".

The fate of documents considered by the judge is an intriguing 12-year tale involving people not heard by the court.

Four Corners believes it begins at Wittenoom, in north-west Australia, just five months after Brian Wilson's [of law firm Clayton Utz] advice to get rid of documents.

 

University of New South Wales Law Journal 2002:

C The Document Retention Policy

The defendant stated that it destroyed documents pursuant to a company policy, which it referred to as a ‘Document Retention Policy’. The judge found that, notwithstanding the policy’s title, its purpose was destruction, not retention. He was ‘entirely satisfied’ that the purpose of the policy, in 1985 and subsequently, ‘was to provide a means of destroying damaging documents under the cover of an apparently innocent house-keeping arrangement.’ Clayton Utz, one of the law firms advising the defendant, had ensured that words were inserted into the written policy document which could be relied on to assert an innocent motive for document destruction. That firm also advised the defendant that documents destroyed in Australia should be held offshore so that they could be used by BAT Australia in the defence of any future claims.