Destruction of Documents Before Proceedings Commence: What is a Court to Do?

34 Pages Posted: 14 Apr 2004

See all articles by Camille Cameron

Camille Cameron

University of Melbourne - Law School

Jonathan Liberman

McCabe Centre for Law & Cancer

Abstract

The effective performance by courts of their adjudicative role depends on the availability of relevant evidence. In civil proceedings, the discovery process aims to ensure that such evidence is available. If documents that would be relevant evidence in a trial are destroyed, a fair adjudication is made difficult, if not impossible. This is so whether the destruction of documents occurs before or after proceedings commence. This article asks what a trial judge should do in a situation where relevant evidence is unavailable because one of the parties has destroyed documents before the proceedings commenced but anticipating that such proceedings were highly likely, if not certain, to occur. The authors argue that the criminal test of attempting to pervert the course of justice (or contempt of court), as laid down in the recent case of BAT v Cowell, is not the appropriate test because it focuses on the lawfulness of the destruction rather than on the effect of the destruction on the other party's ability to obtain a fair trial. The authors explain what the proper test should be - whether the destruction of documents has made a fair trial impossible - and identify the factors that should influence a trial judge's exercise of discretion in a case where documents have been destroyed.

Keywords: litigation, civil procedure, court, legal procedure, civil, discovery, trial, evidence

JEL Classification: K4, K40, K41, K42, K49

Suggested Citation

Cameron, Camille and Liberman, Jonathan, Destruction of Documents Before Proceedings Commence: What is a Court to Do?. Melbourne University Law Review, Vol. 27, No. 273, 2003. Available at SSRN: https://ssrn.com/abstract=521622

Camille Cameron (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Jonathan Liberman

McCabe Centre for Law & Cancer ( email )

100 Drummond Street
Carlton, Victoria 3053
Australia

Register to save articles to
your library

Register

Paper statistics

Downloads
237
rank
121,333
Abstract Views
2,060
PlumX Metrics