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Tuesday, 27 November 2012
Page: 9942


Senator STERLE (Western Australia) (21:59): I am proud of my service to the great state of Western Australia, both in the trucking industry and now as a senator for the last 7½ years. But, unfortunately, there are others who have made a much less positive contribution to Western Australian life. I am talking about those who fought tooth and nail to deny compensation to the thousands of innocent victims of CSR's asbestos mine at Wittenoom. The horrific impact of the Wittenoom mine has been dubbed 'the world's greatest industrial disaster', with some predicting that it will cause more deaths than the terrible chemical explosion at Bhopal in India.

The story of the toxic mine at Wittenoom is a personal one for me. My dad, as a new Australian who emigrated from Italy after the war, found himself in the Wittenoom mine in 1952. He worked in a variety of roles, one of which was loading railcars underground. There was zero visibility because of the level of dust in the mine, but not only that: there was no personal protective equipment whatsoever provided to the workers. Our family is very lucky that dad is still with us today despite suffering from an asbestos related disease. Sadly, the same cannot be said for a lot of other families who have lost loved ones from asbestos related diseases contracted while working at CSR's Wittenoom mine. I myself, as a truck driver, visited the mine in the early 1980s and spent time walking through the site to see where my dad had worked, never realising at any stage the danger it presented to me.

In 1977, after many years of ignoring the truth, CSR's managers finally accepted the moral and humanitarian, as well as financial, obligation that they had to pay compensation to the victims of their deadly asbestos business. Unfortunately, that is when the real villains stepped in: heartless corporate lawyers who advised CSR management to ignore their 'emotive moral and humanitarian feelings' and build a 'legal fortification' to defeat valid compensation claims.

The conduct of CSR's lawyers came to light during a test case brought in the WA Supreme Court by brave workers Tim Barrow and Peter Heys. CSR's lawyer, a solicitor from the Perth firm Robinson Cox, which later became Clayton Utz, founded CSR's legal fortifications upon the 'four dog defence', a brutal strategy designed to stonewall valid claims, perfected by ruthless asbestos industry lawyers in the United States. It goes something like this. Your dog jumps over the fence and bites your neighbour's child to death. The first line of your defence when they take you to court is that you never owned a dog, or if you did, it was always kept tied up. If you lose on this point, you then claim you had no idea the dog was savage. If you lose that one, you try to make out that the child must have provoked the dog and it was the child's fault. The last line of the defence, if all else fails, is that okay, you did have a dog, it wasn't tied up, you did know it was dangerous, it did bite the child, but the child's actual death was caused by something else.

The 'first dog' deployed by CSR's solicitor was to find every basis imaginable to reject compensation claims brought by the dying victims of the Wittenoom asbestos mine. As the President of the Asbestos Diseases Society of WA, Robert Vojakovic, remarked, CSR's solicitor played a key role in their attempts to deny compensation to the victims of Wittenoom:

… she was CSR's lead lawyer at the time the company was rejecting claims for compensation from dying victims, thereby forcing the families to go to trial …

"She and CSR caused extra suffering for people who were already dying with painful diseases, causing extra trauma for families of victims as well," …

The 'second dog' deployed by CSR's solicitor to defeat claims was to use procedural tactics to delay judgement until after the claimants' deaths. As Mr Peter Gordon, solicitor for Mr Barrow and Mr Heys, noted:

"CSR was represented by—

their solicitor and she—

… was rhetorically asking the court why it was that workers should be entitled to jump court queues just because they were dying."

The solicitor's tawdry efforts partially succeeded—Mr Heys died of mesothelioma before the court could deliver justice, leaving his wife and children to continue his claim.

Why did CSR's solicitor try to delay judgement until after Mr Heys' death? The answer is simple: to reduce CSR's compensation bill. This was the third dog deployed by the solicitor: exploit the fact that Mr Heys died before judgement to reduce the amount of compensation payable to his family. Because Mr Heys died before judgement was delivered, CSR was able to apply a discount to the compensation payable to his surviving wife and children. Although Mr Barrow and Mr Heys' landmark case ultimately succeeded, CSR's solicitor was not prepared to let sleeping dogs lie and continued to exploit technicalities to reduce the compensation payable to Mr Heys' surviving wife and children.

In 1989 the solicitor deployed her fourth dog: an appeal against the compensation awarded to Mr Heys' family, arguing that CSR's debt should be reduced because Mr Heys received workers compensation payments while he remained alive. The solicitor's cynical manoeuvre succeeded, and she ripped almost $19,000 out of the hands of the dead man's family. In subsequent years, CSR's solicitor has pleaded that she was simply acting on her client's instructions and the advice of barristers when she sought to delay justice to dying men. But the solicitor, and she alone, is responsible for her conduct as a solicitor. She cannot shift the blame to her clients or advising counsel. This is spelt out in black and white in section 32 of the WA solicitors professional conduct rules, which requires solicitors to exercise independent judgement in the conduct of proceedings, notwithstanding client's instructions or advice from barristers. This principle of professional independence has been affirmed by none other than the Chief Justice of the High Court, in the case of Giannarelli v Wraith.

The apparent failure by CSR's solicitor to exercise the required degree of independent judgement may not be her only failure to live up to the professional standards expected of an ethical lawyer. In the Barrow and Heys case, the WA Supreme Court was frustrated from making further findings about CSR's conduct because key documents had suspiciously gone missing. In my opinion, the loss of these documents reeks of a cover-up. And what makes it even more concerning is that the solicitor involved was from none other than the law firm that became Clayton Utz.

We all remember the shocking scandal that beset Clayton Utz when it was discovered the firm had deliberately destroyed thousands of documents to help British American Tobacco escape liability for injuries caused by its own trade in death. Were CSR's missing documents also victims of the hardworking shredding machines that featured in Clayton Utz's 'document retention policy'? Was Clayton Utz's effort to destroy documents in the British American Tobacco case simply the last in a long line of dodgy legal practices? These are very serious questions that must be answered.

The solicitor responsible for CSR's behaviour towards the victims of its asbestos mines should feel ashamed of the harm she has caused to the people of Western Australia. In my opinion, she has demonstrated a total lack of judgement and failed to exercise the requisite degree of professional independence; she displayed highly questionable values and conducted the litigation in an immoral and inhumane manner; and she failed to live up to the ethical standards expected of her as a lawyer by seeking to defeat the fair and efficient administration of justice. The solicitor in question also has serious questions to answer about the suspicious disappearance of documents that may have been of assistance to the victims of Wittenoom.

Mr Deputy President, you may ask why this solicitor's professional conduct some 20 years ago is relevant today. The answer is that the solicitor in question is now a member of this parliament, and to quote the Deputy Leader of the Opposition:

It goes to … character ... ethics ... judgement, whether people can have trust and confidence ...

…   …   …

Your character doesn't commence being judged from the moment you take up your position as a Member of Parliament. People deserve to know what sort of person you are, how you conducted yourself in your professional life.

With those words the Deputy Leader of the Opposition makes a noose for her own neck. You see, the Deputy Leader of the Opposition is the solicitor whose disgraceful conduct I have been discussing these past minutes. The Deputy Leader of the Opposition was CSR's lead solicitor in the Wittenoom litigation. After her disgraceful behaviour towards the Prime Minister, any failure to answer these questions will expose the Deputy Leader of the Opposition as a rank hypocrite and will once again expose the terrible lack of judgement inherent in her decision to meet with admitted fraudster Ralph Blewitt, a decision which has led to intense speculation about her increasingly uncertain future.