Document Destruction and Civil Litigation in Victoria is the result of a review commissioned by the Victorian Attorney General, which was prompted by court action brought by cancer sufferer Rolah McCabe against British American Tobacco.

Conducted by Crown Counsel for Victoria, Professor Peter Sallmann, the report suggests creating a new criminal offence covering destruction of documents before and after the start of legal proceedings. “This statute would deal with the worst and most blatant instances of the destruction of material relevant to civil litigation and would cover highly negligent destructions as well as intentional ones,” Sallmann said in the report.

Sallmann also called for judges to be given discretionary powers to strike out all or part of a claim where a document has been destroyed.

A third key proposal is that there should be a new professional conduct regulation as there is in NSW. This should apply where advice is given by lawyers to clients about document retention and destruction as well as in situations where lawyers themselves are in possession of relevant material.

McCabe, now deceased, suffered from lung cancer, which she attributed to the smoking over many years of cigarettes produced by the British American Tobacco Australia Services Limited (BAT). She sued BAT for personal injuries caused by its alleged negligence and claimed damages.

Victorian Supreme Court judge Geoffrey Eames found that documents that would have helped McCabe’s case against British American Tobacco had been destroyed. Her estate was therefore awarded $700,000. But BAT appealed against the decision and the Court of Appeal said the destruction of documents in the McCabe case was not unlawful because it took place before legal proceedings.

Law Institute of Victoria (LIV) CEO John Cain told Lawyers Weekly the LIV supported Sallmann’s proposal to impose a criminal offence in certain circumstances. The LIV would approach the A-G so that it could be involved in the legislation, Cain said.

Attorney General Rob Hulls commissioned the report following the case. He requested that Sallmann “examine the current law, procedures and practices of discovery in the conduct of civil litigation in Victoria”.

“You are requested to give particular attention to the need for fair trials in civil litigation in Victoria, and what the appropriate role for the courts should be in ensuring the fairness of proceedings when relevant documentary evidence has been destroyed,” Hulls wrote in a letter to Sallmann.

It seemed “wrong and rather odd”, Sallmann said, that an organisation or individual would destroy material that could be relevant to anticipated litigation and then “get away with it”.

“This seems to be what the Court of Appeal decision in McCabe amounts to,” he writes. “It strikes me that this is a narrow, somewhat artificial, technical and unfair test to be imported into the civil justice arena from the criminal law.”