Clutz appeals injunction against Allan Myers

Is Allan Myers the only silk in Melbourne? ... Clayton Utz insists on having this singular barrister to fend off claims by former partner Chris Dale ... Spectre of Rolah McCabe and document destruction ... Appeal against orders that Myers should not appear for the firm ... On and on it goes 

Dale: Clutz insists Myers should cross-examine him

CLAYTON UTZ is digging in over its insistence that $22,000 a-day-man Allan Myers QC act for it in the unlawful dismissal case brought by former partner Chris Dale. 

Last month Justice Elizabeth Hollingworth ordered that Myers not appear for the firm because a professional relationship had existed between Dale and Myers in 2004 and 2005. 

Myers says he has no memory of meeting Dale in 2004 when the then Clutz partner sought his advice over how to handle the firm's demands he pay back disbursements that had been knocked-up in a pro bono case he was handling. 

In late 2005 Dale also said he had a telephone conversation with Myers. It concerned his sacking by the firm but, again, Myers has no memory of the conversation. 

The issues that Dale says were discussed with the mighty silk are the very things that would be the subject of cross-examination in the dismissal case. 

In the preliminary proceedings before Hollingworth, Clayton Utz attempted to impugn Dale's credit over the leaking to The Sunday Age of damaging confidential documents about the way the firm handled the defence in Rolah McCabe's litigation against British American Tobacco. 

The judge found that the leaking of the documents by Dale did not affect his credibility in relation to his claims about Myers. 

A badly worded letter from managing partner David Fagan seeking from Dale a denial that he had leaked the firm's confidential documents allowed the whistleblower some important wriggle room. 

Dale subsequently outed himself as providing the documents to The Sunday Age, but claimed they were not confidential. 

The judge agreed that Dale was simply responding to "a cute lawyer's letter". 

"In the context in which it was written, the approach taken by [solicitor] Mr O'Donnell and Mr Dale in that letter is understandable." 

Myers: no memory of advising DaleClutz challenges this findings and whole heap of others. 

The notice of appeal says the trial judge erred in holding: 

• That Dale's reply to Fagan's letter was "understandable" in the context in which it was written; 
• That Dale had not knowingly and recklessly made a false representation; 
• That Dale's evidence about his alleged meeting with Myers in August 2004 and the phone call in 2005 is not directly contradicted by Myers; 
• That Dale's evidence about the meeting with Myers should be largely accepted; 
• That a professional relationship of lawyer and client was created between Dale and Myers; 
• That Myers had a relevant memory capable of being refreshed and that if it did return there was a real possibility he may be a witnesses at the trial; 
• That an injunction should be granted to protect the due administration of justice and the integrity of the judicial process; etc. 

See earlier report: Allan Myers struck from Clayton Utz case  

Also: Allan Myers in the box  

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Dale was instrumental in bringing justice to Rolah McCabe's 10 year struggle against British Tobacco.  

The trial judge, Justice Geoffrey Eames, struck out the defence finding that Clutz had  conducted a policy of document destruction. 

Eames was overturned by some contorted reasoning from VicAppeals, which set aside the damages of $700,000 and ordered a new trial. 

By this stage Rolah McCabe had died, but the case was conducted in the name of her daughter, Roxanne Cowell. 

In August 2006 there was a dramatic development. Christopher Dale told Jack Rush, QC, counsel for McCabe at the trial, that he had reports of an investigation by Clayton Utz into the lawyers who worked on BATAS's defence.

Dale had been a partner of Clayton Utz and a member of the committee that undertook the internal inquiry.

The Clutz inquiry found that to keep material out of the hands of the plaintiff, documents had been improperly destroyed. 

There were internal findings against two partners of the firm. Both have since left Clayton Utz.

Glenn Eggleton was said to have given evidence that was "potentially perjurious".

See: Clayton Utz board memo on Eggleton.

Richard Travers was said to have improperly frustrated the discovery process, knowing that McCabe only had months to life.  

See: Clayton Utz board memo on Travers.   

Those findings were reported in The Sunday Age. A separate spate of litigation took place in the NSW Supreme Court with BATAS trying to injunct further publication of the secret report. 

The McCabe estate then sought orders from VicSupremes that Clayton Utz's internal review showed an "iniquity" in the way the appeal was conducted and that iniquity should defeat BATAS's claim that the documents were privileged and should not be used to reopen the case.

By this stage Leon Zwier, from Arnold Bloch Leibler in Melbourne, had taken over the estate's case and and ran it pro bono for four years.

Pressure had also been building, with British American Tobacco seeking costs against the estate of about $2 million. 

Ultimately, the catalyst for settlement was Justice Stephen Kaye's decision that a trial should take place and he ordered discovery, including discovery of Clayton Utz's documents.

There was now the distinct prospect of the unfortunate conduct of Clutz's lawyers being ventilated again. 

The estate received a very pleasing confidential settlement. 

It was the whistleblowing of Chris Dale that brought that about. 

In its trademark manner his old law shop is now going overboard to defeat his claim. 

There are festering scores to settle. 

See: McCabe litigation took 10 years in two states