British American Tobacco (BATA) have engaged high-priced corporate lawyers Corrs Chambers Westgarth to pilot their offensive against Nicola Roxon’s plain packaging scheme for cigarettes, with a crack group of intellectual property experts burning the midnight oil to fight for the death stick behemoth’s profits.

Crikey was deluged with information from Corrs insiders following our tip yesterday reporting the wheels were in motion at a “major national law firm” to challenge the government on the controversial new laws, with legal fees tipped to soar well into the tens of millions.

Around 12 intellectual property experts stationed in Sydney and Melbourne are said to be swatting around the clock to prepare a High Court challenge to the legislation, which has the support of both major parties. Partners at Corrs reportedly charge out at about $500 per hour with associates basking in about $450.

University of NSW law professor George Williams helpfully outlined Corrs’ possible High Court strategy in this morning’s Sydney Morning Herald based on section 51(31) of the constitution. Just like in The Castle, Big Tobacco were preparing to invoke the ”acquisition of property” clause to ensure the federal government grants ”just terms” to any decision to impinge on their IP.

The millions spent on lawyers could pay handsome dividends with potential compensation stretching to about $3 billion, Williams wrote.

And insiders at another leading firm, Allens Arthur Robinson, report that they have “acting” for BATA on another angle of attack — the World Trade Organisation’s Trade-Related Aspects of Intellectual Property Rights. Under this broadside, Australia, as a signatory to the TRIPS, might be forced to hand over cash at the WTO’s dispute settlement body. Countries are allowed to take measures to protect public health but hacking into logos might be interpreted as a step too far.

BATA are deadly serious. Last month, company spokesperson (and “social smoker”) David Crow explained laconically that “guys like us are going to defend our trademark … if they lose it [the legal battle], which we think they will, they’ll have to pay compensation and that’s billions of dollars — and that’s not a smart use of taxpayers’ money.” The comments prompted massive splashes across three News Limited tabloids over fears the company was going to inundate the market with cheap smokes in a blackmail attempt.

A press release issued last week said BATA would be applying to the Federal Court to obtain Roxon’s legal advice under Freedom of Information — documents it says will reveal that the legislation is flawed and that compensation is payable.

But there still appears to be some serious legal hurdles with Williams noting that while plain packaging is “a blatant, and deliberate, infringement of their brands and trademarks” it would be a “hard argument” to convince a High Court judge the government had “acquired” the trademarks simply by banning them.

Williams told Crikey that BATA had a right to their day in court and that sometimes “a minor technical argument” can succeed away from the broader issues of public health. He was hesitant to criticise Corrs’ involvement, noting that “everyone is entitled to representation.” He said that if any individuals had personal objections slaving for Big Tobacco they could step aside and do something else.

BATA has a history of aggressive tactics. In the notorious Rolah McCabe case nine years ago it employed Clayton Utz — with two of the firm’s senior eagles later found by an internal investigator to have engaged in “potentially perjurious” court actions and serious professional misconduct. After Clutz jumped ship with their public reputation dented, Corrs took up the cudgels and continued the mind-bending legal strategies to prevent the McCabe case from being reopened.

Health Minister Nicola Roxon, fresh from a combative performance on last night Q&A, was scathing when contacted by Crikey over the looming action.

“Big Tobacco are fighting to protect their profits, but we are fighting to save lives,” she said. “We are not going to back away from this fight. We have won these fights in the past and we will win again.”

After our deadline, a spokesperson for BATA, Scott McIntyre, hit back: “It’s a Full Federal Court hearing so of course we’ll be engaging lawyers. How many lawyers are the Federal Government using and how much is that costing taxpayers? The real issue is why won’t the Government release this legal advice? If they’re so sure of their plans for plain packaging why won’t they make the document public?”

Peter Fray

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Peter Fray
Editor-in-chief of Crikey