[Intl-tobacco] Australia: WHY THE MCCABE CASE HAS SPARKED FIERCE LEGAL DEBATE

[Robert Weissman]

WHY THE MCCABE CASE HAS SPARKED FIERCE LEGAL DEBATE

Source: The Age
Date: 2002-12-14
URL: http://www.theage.com.au/articles/2002/12/13/1039656219256.html
ID: 111605

Twelve days before he delivered his verdict, Eames was appointed
to the Court of Appeal. Last week, his new brother appeal judges
overturned the McCabe ruling.

The strong language of the three appeal judges and the degree to
which they overturned Eames' decisions has sparked vigorous
legal debate.

Some lawyers believe it has shown the Court of Appeal to be out
of touch with the way trials are conducted. Others are concerned
that the appeal judges not only disagreed with Eames on points
of law but rejected his findings on matters of fact without
having heard all the trial evidence.

The decision also raised a more basic question: how could four
judges of the same court look at the same case so differently?

Justice Eames, 57, is the newest and youngest of the court's 11
justices.

He started his career at Slater and Gordon, the firm that
represented Mrs McCabe. But not even the harshest critics of his
decision suggest his working there 30 years ago coloured his
findings. . .

The three judges who overturned the McCabe ruling - Justices
John Batt, 67, Peter Buchanan, 59, and John D. Phillips, 66 -
are seen more as "black letter" jurists, who favour a strict
interpretation of the law. . .

But one legal observer said the appeal court looked at only a
few of the documents they said should have been excluded.

"In this case the appeal judges simply took on the task of
evaluating the facts for themselves," the analyst said.

"They did not address all of the material Eames discusses in
great detail in his judgment.

"The three appeal judges' expertise is in deciding complex legal
questions, not factual disputes."