Saturday, October 10, 2026

Clayton Utz’s Past Conduct - Part 1: Destroyed Documents and the Promised Ethics Review

I have already written about what my family and I experienced when Clayton Utz became involved in our complaints to my university. In that post, I listed reports about other matters involving the firm. I want to look more closely at those reports now, beginning with the case of Rolah McCabe.


Mrs McCabe was dying of lung cancer when she sued British American Tobacco Australia. Her case raised a question that reaches far beyond tobacco litigation: what chance does a person have of receiving a fair hearing if documents that may matter to their case have been destroyed? 


Clayton Utz acted for British American Tobacco. On 22 March 2002, Justice Geoffrey Eames of the Supreme Court of Victoria ruled on Mrs McCabe’s application to strike out the company’s defence. His judgement examined the destruction of documents, the company’s document retention policy, and the role of its lawyers. He concluded that Mrs McCabe had been denied a fair trial and ordered that the defence be struck out. A jury subsequently assessed damages at $700,000.


The findings concerning Clayton Utz were serious. They were reported widely, and the firm disputed allegations that it had overseen document destruction or conspired to withhold evidence. One lawyer named in the judgement said he hadn’t been given an opportunity to answer adverse findings about him.


(NOTE: My family and I had no say in our complaints to ACU. Clayton Utz and their lawyers’ unethical interference played a role in that. What a double standard.)


On 6 December 2002, the Victorian Court of Appeal overturned the order striking out British American Tobacco’s defence and set aside the damages judgement. It directed that the case be sent back for a new trial. Mrs McCabe had died before that appeal judgement was delivered.


I don’t want to repeat the original findings as though they remained the final court ruling. Equally, I don’t want the appeal to erase the public questions that arose about document handling, legal advice and access to justice. Both stages belong in an honest account of this case.


——


What happened to the promised ethics review?


On 24 April 2002, The Australian Financial Review reported that Clayton Utz’s board had begun a broad internal review following Justice Eames’ judgement. The firm’s chief executive partner, David Fagan, said it would examine the judgement and the conduct of the case against the firm’s standards. He indicated that adverse findings could lead to internal action.


That was a consequential public assurance. When an organisation announces an ethics review in response to a judgement of this gravity, it’s reasonable to ask what the review examined, what it concluded and what action followed.


On 18 July 2002, Clayton Utz announced that it would close its tobacco claims litigation practice. Its own statement described this as a business strategy decision. It also said the internal review was continuing and that it would be inappropriate to finalise it before the appeal and the NSW Legal Services Commissioner’s investigation. Closing a practice and completing an ethics review are different things. What became of the review? 


The matter returned to public attention in December 2006. The ABC and The Australian Financial Review reported on leaked material said to come from a Clayton Utz internal inquiry. They reported allegations of serious professional misconduct concerning two former partners and an allegation that evidence given by one was potentially perjurious. The Victorian Attorney-General referred the material to the Director of Public Prosecutions to consider whether criminal charges were warranted, and to legal services regulators to consider possible professional misconduct.

A referral isn’t a criminal finding. A leaked account of an internal inquiry isn’t a published disciplinary decision. Clayton Utz said the leaked material concerned a preliminary review that had been superseded, and maintained that the appeal and legal regulator reviews had exonerated the firm and its lawyers. The reports I’ve compiled don’t establish the final outcome of the later DPP referral. (See also: https://www.tobaccoinaustralia.org.au/chapter-16-litigation/appendix-16-1-mccabe).


But the questions don’t disappear. If an ethics review was announced publicly, what findings, if any, were ultimately reached? How could the public understand the relationship between that announced review, the later leaked material, and the firm’s statement that it had been exonerated?


In a 4 August 2002 interview with Margaret Simons for the Sunday Age, Clayton Utz chief executive David Fagan set out how he saw the firm’s ethical responsibilities. He said lawyers must act within their professional duties, particularly their duty to the court, but that “we don’t take a moral stance” on behalf of a client. He described the decision to leave tobacco claims litigation as a business decision. At the same time, he said the firm’s core values were “honesty and integrity” and that it had carefully reviewed the McCabe judgement, although it wouldn’t finalise or discuss the review’s results while the appeal and regulatory investigation continued. The article also reported that Clayton Utz had established a professional excellence committee. I’m left asking: what did the promised review ultimately conclude, and what changed in the firm’s practice as a result?


——


Why I’m revisiting this


Rolah McCabe’s case isn’t my case, and the reports about it don’t prove what happened to my family or me. I’m revisiting it because I have experienced the imbalance that arises when an individual seeking answers faces an institution and its lawyers.


My own account is already on this blog. My family and I have described the communications we received and the effect they had on us. Here, I’m asking readers to look at a documented public case, its appeal, and the questions raised by a promised internal ethics review.


Mrs McCabe’s case deserves to be described with care. She was a person trying to have her claim heard while gravely ill. The trial judgement, the successful appeal, the firm’s responses and the later reports must all be part of the story.


For me, the question left by this first part is simple: 

when a powerful firm publicly promises to examine its own conduct, how can the people affected know what was learned and what changed?


——


Sources

  • Pheasant, B., “Clayton Utz to run ethics audit,” The Australian Financial Review, 24 April 2002.
  • Simons, M., “Lawyers not moral judges – Clayton Utz chief,” Sunday Age, 4 August 2002. 
  • Alberici, E., “Law firm Clayton Utz faces criminal investigation,” ABC, 21 December 2006.
  • Drummond, M. and Moran, S., “Clayton Utz faces criminal probe,” The Australian Financial Review, 21 December 2006. 

Friday, October 9, 2026

Where Was the Boundary? My Emails About Clayton Utz, My Family and SafeWork NSW - November 2022

On 9 November 2022, I sent a long email setting out a chronology of my attempts to obtain workplace protection, communicate with my colleagues and return safely to my work. I described the effect that correspondence from Clayton Utz, unethically acting “on behalf of the university”, had on me and my family.

On 10 November 2022, I followed up with selected records, an annotated workplace safety strategy and references to reporting about Clayton Utz’s earlier conduct.

I sent these emails to SafeWork NSW and SIRA, and I included journalists because I felt that my repeated requests for help hadn’t stopped the harm. I asked the journalists to protect my identity, my family’s identity and the university’s identity at the time. I also copied in the two lawyers from Clayton Utz involved in these unethical communication practices. What I wanted was an investigation and a safe return to the work I had done for two decades.


The two emails belong together. The first explains the history and why I was so distressed. The second identifies some of the records I sent to support what I had said.


——


I asked for a safe workplace


This began with a request to address bullying, harassment and psychosocial hazards at work. I needed the problems resolved so that I could continue doing my job safely and well. I also had temporary carer responsibilities, and I was entitled to keep my family’s privacy private.


By 20 May 2020, I was responding to false statements made in a 13 May 2020 letter from a HR executive to my employment lawyer. I wrote about the scrutiny I had experienced when taking leave (ie. harassment), and about the way my family had been drawn into questions about my work. I was trying to explain that using my leave entitlements when I needed them was not a special accommodation or a failure of commitment to my job.


I had worked hard for the university. I wanted to remain part of it. In the November 2022 chronology, I returned repeatedly to the same point: I had asked for a safe work environment, not for my family’s privacy to be unlawfully involved or for my connection with colleagues to be cut off.


See:

http://mystory-myvoice.blogspot.com/2025/04/dangerous-psychopathic-letter-2020-part.html


——


My family’s complaint came before Clayton Utz’s emails


My family didn’t suddenly appear in this story when Clayton Utz unlawfully “contacted” them.


In my 9 November 2022 chronology email, I explained that my family’s privacy had become an issue during a 9 March 2020 meeting about my workplace matters. Family members later made their own formal complaint about what had happened to them. I described the Clayton Utz emails that followed as threatening and intended to intimidate my family into silence.


My family’s privacy was violated by HR senior executives. They chose to violate privacy laws and entangling my family in what began as my request for a safe workplace. They had every reason and a right to raise concerns about their own privacy. They should never have become targets because I reported bullying, harassment and psychosocial hazards at work.


These events caused distress within a family that was already dealing with serious grief and trauma.


That’s the boundary I keep coming back to:


How did a workplace safety complaint reach the point where my family was receiving a frightening letter from my employer’s lawyers at Clayton Utz? 


See:

http://mystory-myvoice.blogspot.com/2025/02/introducing-corporate-psychopath.html


——


An email address created for recovery


On 2 July 2020, after making a workers’ compensation claim caused by the employer’s unsafe and intimidating conduct as retaliation, I told Catholic Church Insurance’s case manager about a new email address. I had created it on my psychologist’s recommendation for communication about injury management and my return to work. It was intended for contact with my treating professionals, the case manager and those coordinating that return, including ACU’s Return to Work coordinator. 


In my November 2022 chronology, I said that the address later reached Matthew Condello of Clayton Utz. To me, that was another example of something intended to support my recovery becoming a channel for sending communication I experienced as intimidating.


The broader return to work process was also a central part of my 9 November 2022 email. I wrote that by 6 October 2020, I was writing to the university’s work health and safety manager because almost five months had passed without the communication or return to work plan I needed. I was asking the employer and insurer to cooperate with my treating professionals and help me return safely.


I wrote to Catholic Church Insurance at the same time about the financial consequences of delay:


“The income stops, but the bills don’t.”


That was why the absence of a RTW plan mattered so much. I was dealing with a continuing workplace safety concern, a need for contact and support, and growing financial pressure. My concern about these lawyers’ involvement cannot be separated from that situation.


See:

http://mystory-myvoice.blogspot.com/2025/06/email-address-created-strictly-for.html


http://mystory-myvoice.blogspot.com/2025/08/whs-and-wellbeing-manager-negligence.html


——


The letters to my family and me


In the 9 November 2022 email, I told SafeWork NSW that Clayton Utz must never contact me and my family again. I was angry, frightened and exhausted. The firm’s communications had crossed a boundary that should NEVER have been crossed.


I described the Clayton Utz communication to my family as a scare tactic. I also described receiving a letter from Matthew Condello of Clayton Utz on 4 February 2021. I understood that communication as an attempt to stop me contacting colleagues and members of the university community who mattered to me. I was seeking support, a safe return to work and an end to the isolation.


See:

http://mystory-myvoice.blogspot.com/2025/07/intimidating-family-as-community.html


http://mystory-myvoice.blogspot.com/2026/01/clayton-utz-isolation-intimidation.html


This sequence was important, because on 18 January 2021, I had complained to SafeWork NSW and asked for help with the continuing workplace risks and my isolation. I including three colleagues as witnesses, including the WHS and Wellbeing manager. Then came that lawyers’ correspondence to me. Instead of feeling protected after raising my concerns, I felt more frightened to open my email.


See:

http://mystory-myvoice.blogspot.com/2026/01/safework-nsw-my-experience-when.html


I had told my workers’ compensation solicitor:


“Can you inform this bully law firm to never contact me again. I want to return to my work and I demand the offenders in HR to leave me alone. I need a colleague to contact me as a support.”


I was trying to establish a boundary because the contact had become another source of distress.


I also responded to Mr Condello of Clayton Utz directly, informing him that I hadn’t viewed his attachment because of its effect on my wellbeing. I wrote:


“All I asked for in return was a safe work environment, so I can continue to provide excellent service without collapsing from stress and burnout.”


I had waited until a GP telehealth appointment to open that email account because I was afraid of what I might find. I expected another distressing response from SafeWork NSW; I didn’t expect the kind of lawyers’ correspondence my family had already experienced to reach me too. I recorded at the time that my GP was shocked and said they shouldn’t be harassing me. I made a workers compensation claim because of this very unsafe conduct by university representatives in HR.


See:

http://mystory-myvoice.blogspot.com/2026/01/when-cry-for-safety-is-answered-by.html


My family had made a formal complaint to the university about their own privacy. They had every right to do that. This had nothing to do with Clayton Utz. It was a direct legal obligation from my nationally registered, publicly funded university employer, with a VC on a $1 million salary that’s extremely responsible for ensuring the safety and wellbeing of staff, students and the community members who were being relentlessly harassed by staff and lawyer representatives of the university. The now VC, Zlatko Skrbis, was also the decision maker of these complaints. It’s all on record. 


See:

http://mystory-myvoice.blogspot.com/2025/06/the-decision-maker-now-vice-chancellor.html


Yet correspondence from Clayton Utz came to my family, and the to me, in response. We experienced those letters as threatening and intimidating, beyond disrespectful. It definitely didn’t display a commitment to the dignity of the human person, as stated in ACU’s mission. I want the university leaders and Clayton Utz to understand that involving my family in this way caused real distress.


I want Clayton Utz to never again contact me or my family. I want ACU to stop conduct that I experience as threatening or intimidating and to address my workplace safety concerns so I can return to my work with appropriate safeguards. Those were the boundaries I was trying to establish then, and they remain important to me.


Lawyers are paid to act for their clients. That doesn’t answer the ethical question I raised then and raise again now: what responsibility do they have when their communications may cause further harm to an injured worker and her family? Who examines the substance, the tone and the consequences of those communications, especially when the person receiving them has repeatedly said that contact is causing distress?


I was under a statutory scheme that should have protected me! 


——


What I asked SafeWork NSW to see


My 9 November email set out repeated attempts to get SafeWork NSW to examine the workplace risks I was reporting.


In October 2020, I had contacted SafeWork NSW while seeking protection from conduct I that was continuing during my workers’ compensation claim. I recalled an inspector saying, “I’m not here to do he said she said.” That was a shock to me when I was asking for the records and the continuing conduct to be examined.


See:

http://mystory-myvoice.blogspot.com/2025/08/enter-unsafework-nsw-that-rtw-plan-i.html


http://mystory-myvoice.blogspot.com/2025/08/unmanaged-psychosocial-hazards-october.html


On 9 March 2021, I responded to SafeWork NSW again. I asked it to take seriously my lack of contact with colleagues and the distress this was causing. I needed a support network among the people I had worked with for so long. This was part of my safety and recovery, not a side issue.


See:

http://mystory-myvoice.blogspot.com/2026/01/when-regulators-close-ranks-systemic_02001716617.html


My chronology continued through 2021 and into 2022. I described further approaches to SafeWork NSW, including correspondence about its response to my complaint, contact with its psychosocial health channel and a report submitted through its Speak Up process. I questioned how public commitments to mentally healthy workplaces were being put into practice when I was still asking for help with the risks I had reported.


I wasn’t asking for a stock response or a referral that sent me around another circle. I wanted the workplace conduct examined and the injury management and return to work arrangements addressed.


See:

http://mystory-myvoice.blogspot.com/2025/06/injury-management-plan-legally-binding.html


http://mystory-myvoice.blogspot.com/2025/09/injury-management-and-rehabilitation.html


http://mystory-myvoice.blogspot.com/2026/03/when-government-mentally-healthy.html


http://mystory-myvoice.blogspot.com/2026/04/safework-nsw-thank-you-for-speaking-up.html


——


The friend who tried to help


A friend of mine became involved because she was concerned for my safety and tried to advocate for me. She called the university’s work health and safety manager. My understanding is that the cause of my claim, the national manager of employment relations and SAFETY, called my friend back and directed her towards Matthew Condello of Clayton Utz. To me, that raised another boundary question: why was a concerned friend being pointed to a lawyer by my university employer, when she was trying to express concern about my wellbeing?


See:

http://mystory-myvoice.blogspot.com/2026/01/a-whs-turning-point-i-will-never-forget.html


The 9 November chronology records other ways she tried to help. In April 2021, I asked her to forward an email seeking assistance from a university discrimination and harassment adviser because I feared my own email might not get through. I reported that her contact details also appeared to have been blocked by this publicly funded university employer. 


See:

http://mystory-myvoice.blogspot.com/2026/02/discrimination-and-harassment-adviser-2.html


On 28 May 2021, she contacted the dean of the Strathfield campus because she was concerned about my emotional safety in attending a weekend event on campus. I recorded how distressing the response was for me and how concerned she became for my health. I also recorded that she received two calls from a private number soon afterward, with no message left. I don’t know who made those calls or why.


See:

http://mystory-myvoice.blogspot.com/2026/02/when-safety-is-denied-at-threshold-may.html


——


What I sent Safework NSW on 10 November 2022


The 10 November email followed the detailed account I’d sent the day before. This time, I identified selected records I was providing.


I explained that I hadn’t read one of the lawyers’ letters myself because doing so felt unsafe. That’s part of the record too. The distress was such that even opening correspondence required support.


The copy of the follow-up email includes an automated acknowledgement from SafeWork NSW shortly after the forwarded email’s timestamp. The acknowledgement shows that an automated response was sent; it doesn’t tell me what substantive assessment followed.* 


The email was an appeal for the conduct to stop and for someone with authority to look at what had happened. It was also a request to respect my family’s privacy. I shouldn’t have had to choose between seeking workplace protection and protecting the people close to me from being pulled into the consequences.


* Given the silence from SafeWork NSW that followed, the only conclusion is IGNORED AND ABANDONED IN MY FEAR BY SAFEWORK NSW AGAIN. 


——


The ethics audit question


The 9 November email ended by questioning Clayton Utz’s professional responsibilities and referring to reporting about earlier controversies involving the firm. I said I would provide the references. The 10 November material includes that reference list.


One citation has stayed with me: a 24 April 2002 Australian Financial Review article by B. Pheasant titled “Clayton Utz to run ethics audit.”


Where’s the outcome of that proposed audit? Was an audit completed? Was a report produced? What did it examine, what changes followed, and what standards guide the firm when its lawyers correspond with an injured worker or her family?


The article title in my reference list shows why I was asking these questions in 2022. It doesn’t tell me whether the audit was completed or what it found. I’d like to see the report, if there is one, or a clear account of the outcome.


The other articles I listed concerned separate events involving the firm over many years. They don’t prove what happened in my case. They explain why I wanted scrutiny of a firm whose lawyers’ communications had, in my experience, added to the harm. A public reputation for legal expertise should invite serious examination of professional conduct when someone raises a specific, documented concern.


——


The question that remains


My 9 November email was long because the experience had been long. It traced repeated requests for a safe return to work, contact with my colleagues and protection for my family. My 10 November email followed with selected records and references. Together, they show what I was asking people to examine and how urgently I needed them to listen. No one listened. 


The emails were raw because I was living through what I described. I was trying to protect my family, reach my colleagues, recover my health and return to the work I had done for two decades. I wanted SafeWork NSW to examine the workplace risks I had reported, and I wanted the lawyers’ contact with me and my family to stop.


There must be a boundary. A worker who asks for safety shouldn’t find that her family’s privacy becomes part of the pressure around her. A friend who tries to help shouldn’t be made to feel exposed. And a lawyer’s involvement shouldn’t leave the person seeking protection, to become even more frightened to open her email.


I’m still asking who will examine what happened, including the communications sent to my family and me, and who will take responsibility for the harm that followed. I’m also still asking Clayton Utz a straightforward question: what became of the ethics audit reported as planned in 2002?


Source: contemporaneous record of events - Documents 559-560.

Thursday, October 8, 2026

UnSafeWork NSW: I Asked Them to Make the Harm Stop - November 2022

 “It’s discouraging to think how many people are shocked by honesty and how few by deceit.”  Noël Coward

On 2 November 2022, I sent an email with the subject line “UnSafeWork NSW.” I was frightened, exhausted and facing financial losses I could no longer absorb. I had spent years asking for a safe workplace and for the injury management plan issued by Catholic Church Insurance (CCI) to be put into effect. I wanted to recover and return to the job I had done for twenty years.


I wrote plainly about what I needed:


“Please don’t slap a list of useless numbers at me. Start listening to what I need to recover and be well.”


I needed my income, my workplace community and a safe path back to work. I needed the conduct I had reported to stop. 


I needed SIRA and SafeWork NSW to examine what the employer and insurer had actually done, rather than accept the existence of policies as proof that anyone was safe.

——

The evidence I sent to SIRA


I had reported my concerns to SIRA on 11 January 2021. In the November 2022 email, I said I had sent evidence by registered post because I wanted a transparent investigation into what was serious wrongdoing under workers’ compensation arrangements. SIRA returned that material to me by registered post.


I couldn’t understand how returning the evidence answered the allegations. I asked:


“Can you enforce compliance SIRA and SafeWork NSW or not? Or are policies all you need to be shown as your interpretation of ‘compliance?’”


That question remains at the heart of this account:


If an injury management plan exists but the people responsible don’t carry it out, who steps in? What happens when the worker keeps asking for help and the financial and psychological harm continues?

——

An injury management plan without the support I needed


CCI’s case manager issued an injury management plan. In my email to SIRA NSW, I described repeatedly asking who would replace her after I was told she had left. I also described asking CCI to communicate and cooperate in my recovery and return to work. My experience was silence.


I wrote that my nominated treating doctor and allied health professional hadn’t been contacted by the insurer to take part in that process. Meanwhile, I was using my personal, annual and long service leave. I couldn’t separate my psychological injury from the workplace conditions I had been asking others to address:


“Symptoms of psychological injuries cannot be treated separately from the cause. And no one listened to the cause.”


I DID NOT abandon my work. I’ve been asking to return to it safely, with the support the plan was meant to provide.


See: http://mystory-myvoice.blogspot.com/2025/06/injury-management-plan-legally-binding.html

——

The cost of waiting


The email set out the financial consequences I was facing at the time. I wrote that I expected to forfeit a $30,000 deposit on an investment property because I now couldn’t finance the purchase. I also said I had needed to withdraw $300,000 from my superannuation to protect my home.


Those weren’t abstract figures in a claim file. They represented years of work, savings and plans for my future. Access to my job, income and workers’ compensation entitlements would have prevented that damage. By November 2022, I was still pleading for someone to investigate and intervene.


“I have a mortgage and bills like all of you.”

——

What happened around Christmas


In the same email to SafeWork NSW, I looked back at two Decembers.


Around 22 December 2020, a letter arrived from my employer. I didn’t open it. I wrote “return to sender” and posted it back. It was Christmas, and I was already frightened and traumatised by what they had done to me and my family. I didn’t feel emotionally safe opening another unexpected cruel letter from university leaders not aligned to the mission, which includes a commitment to the dignity of the human person. This organisational behaviour was sadistic.


See: http://mystory-myvoice.blogspot.com/2025/01/quality-staff-and-university-leaders.html


On 10 December 2021, I emailed SIRA about whether I could safely open registered post it had sent me. I recorded in this email that a SIRA officer replied on 14 December 2021 to a different email address, one I was no longer checking for my emotional safety. I couldn’t know why that address was used, but at the time it added to my distress and my sense that I wasn’t being heard. Do I need to spell out to SIRA NSW that this is called trauma, secondary trauma caused by their very conduct and attitude to a serious complaint? 


See: http://mystory-myvoice.blogspot.com/2026/04/is-it-safe-to-open-what-that-question.html


I also referred to return-to-work material published on 21 December 2021. Statistics and statements about improved outcomes were painful to read while I was still asking how my injury management plan would be implemented.


See: http://mystory-myvoice.blogspot.com/2026/09/sira-nsw-regulator-already-knew-system.html

——

What I wanted SafeWork NSW to see


I described my experience of a SafeWork NSW inspector in October 2020, including my recollection of being told:


“Well they’ll just show their policies and I don’t want to ruffle feathers.”


That statement shocked me. A workplace can produce polished policies. The question I was asking was whether those policies protected me in practice, and whether anyone would act when I reported that they did not!


I was also trying to explain the effect of isolation. I had spent two decades in my university community. A university employer recklessly barring contact with colleagues and the support of that community while trying to recover, a workplace right, was itself deeply painful and cruel. It definitely didn’t align with the mission. I wrote:


“I need a support network from my university community I’ve been part of for twenty years.”


My email contained accusations of fraud, mistreatment and regulatory failure. Those were the serious concerns I was asking the relevant bodies to investigate. They should have been examined through evidence and a fair process. I was one person, trying to be heard while the consequences kept growing.


Near the end, I asked:


“Is anyone going to make the abuse stop?”


I was asking for action: an examination of the evidence, accountability for the injury management plan, and a safe way to recover in the job I had served for twenty years. More than anything, I was asking people with the power to intervene to listen before further harm was done.


But SafeWork NSW kept ignoring me. Where’s the regulator’s responsibility for the foreseeable harm they allowed to continue? 


See: 

http://mystory-myvoice.blogspot.com/2025/08/enter-unsafework-nsw-that-rtw-plan-i.html


http://mystory-myvoice.blogspot.com/2025/08/whs-and-wellbeing-manager-negligence.html


http://mystory-myvoice.blogspot.com/2025/08/harassment-continued-violation-of.html


http://mystory-myvoice.blogspot.com/2025/08/unmanaged-psychosocial-hazards-october.html


http://mystory-myvoice.blogspot.com/2025/09/psychological-terrorism-from-whs-duty.html


http://mystory-myvoice.blogspot.com/2025/09/injury-management-and-rehabilitation.html


Source: contemporaneous record of events - Document 556.