Destruction of Documents

Lord Donaldson MR provided this description of the process of civil discovery in Davies v Eli Lilly & Co [1987] 1 All ER 801:

“The right to discovery is peculiar to the common law jurisdictions. In plain language, litigation in this country is conducted ‘cards face up on the table’. Some people from other lands regard this as incomprehensible. “Why’, they ask, ‘should I be expected to provide my opponent with the means of defeating me?’ The answer, of course, is that litigation is not a war or even a game. It is designed to do real justice between opposing parties and, if the court does not have all the relevant information, it cannot achieve this objective.”

The destruction of documents relevant to current or proposed proceedings is deemed to be criminal conduct in all States and Territories. In Victoria it is an offence pursuant Part 1 Division 5 of the Crimes Act 1959 (Vic) {Link}. .

The case of McCabe v British American Tobacco Australia Services Ltd [2002] VSC 73 received much public attention and Eames J stated at [385]:

“… the process of discovery in this case was subverted by the defendant and its solicitors Clayton Utz, with the deliberate intention of denying a fair trial to the plaintiff, and the strategy to achieve that outcome was successful. It is not a strategy which the court should countenance, and it is not an outcome which, in the circumstances of this case, can now be cured so as to permit the trial to proceed on the question of liability. In my opinion, the only appropriate order is that the defence should be struck out and judgment entered for the plaintiff, with damages to be assessed.”

The duty to act with candour, including not to mislead the court, is articulated in legislation and professional rules, and reflects the position at common law. The duty—both proscriptive and prescriptive—is a central obligation owed by lawyers and necessarily has general application to the conduct of matters by lawyers.

However, in the context of discovery it also has application to the extent that in some instances, parties do not provide adequate discovery through failing to disclose the existence of relevant documents, or by destroying documents. Under professional rules, lawyers must not knowingly make—either in oral or written submissions—‘a misleading statement to a court’, ‘a false statement to the opponent in relation to the case’, or ‘deceive or knowingly or recklessly mislead the court’; and they have an obligation to correct any misleading statements {eg Professional Conduct and Practice Rules 2005 (Vic) rr 14.1, 14.2}.

Professional Conduct and Practice Rules 2005

This duty encompasses an obligation not to mislead the court with respect to the facts of the case or to misinterpret the law, to be aware of the applicable rules and procedure as well as to draw the court’s attention to authorities which support or act against their client’s case { Victorian Bar Practice Rules (Vic) r 24. }.

Victorian_Bar_Incorporated_Practice_Rules (1)

Specific legislative articulations of the duty of candour are broad, often included within the scope of overarching obligations. For example, the Civil Procedure Act 2010 (Vic) contains overarching obligations including to act honestly {Civil Procedure Act 2010 (Vic) s 17} {Link}. .

In R v Rogerson [1992] HCA 25; (1992) 174 CLR 268, 277 Mason J said:

“It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed. That is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible.”

Retention of Documents

In the case of a trust established in South Australia Section 84B of the Trustee Act 1936 (SA ) and the associated Trustee Regulation 2011, require prescribed trust records to be retained for at least 5 years after a trust has been revoked or terminated.

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This tab updated on 14 August 2015