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Reviews of judgments

Every Issue

Cite as: (2003) 77(3) LIJ, p.57

High Court Judgments

Cite as: (2003) 77(3) LIJ, p.57

By Thomas Hurley

Constitutional law – constitutional writs – jurisdictional error – constructive failure to exercise jurisdiction – failure to take into account relevant matter – utility of relief – failure of RRT to notice in application by wife and children for protection visa that their separated husband had been granted one in Australia.

  • Re MIMIA; ex parte Applicants S134/2002 [2003] HCA 1 (4 February 2003).

The prosecutors (a wife and her five children), citizens of Afghanistan, applied for protection visas in February 2001. A criterion for the visa was that the applicant was a member of the same family unit as a person who had been granted a protection visa. The departmental file before the RRT revealed that the husband/father, from whom the applicants had been separated in travel, had been granted a temporary protection visa in Australia in August 2000. The applicants were unaware that the husband/father was in Australia. Shortly after the RRT decision, the prosecutor learned of her husband’s situation and requested that the Minister exercise his personal power under s417 of the Migration Act to set aside the decision of the RRT in favour of a decision to grant a visa. The Minister refused in April 2002. The prosecutors obtained an order nisi from the High Court in June 2002 for constitutional writs to set aside the decision of the RRT and require the Minister to reconsider the personal power given by s417 of the Migration Act. The respondent contended both decisions were “privative clause decisions” within the Migration Act as amended from 2 October 2001. The High Court discharged the order nisi: Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ jointly. Gaudron and Kirby JJ differed by quashing the decision of the RRT. The majority concluded the RRT did not make a jurisdictional error by failing to address a claim not raised [33] for failing to make findings of fact. [40] The majority concluded the decision of the Minister under s417 was the exercise of a personal and essentially non-reviewable power. [45], [48] Gaudron and Kirby JJ concluded the decision of the RRT involved a jurisdictional error because it could not be said to be satisfied of criteria where it had overlooked that matter. [87]–[88] They agreed that because the power under s417 was personal and discretionary, no order of the Court would have utility. [100] Orders that the time for commencing proceeding be extended and the order nisi be discharged with costs.

Constitutional law – judicial power – privative clause – whether privative clause may exclude judicial power from reviewing decision for jurisdictional error.

  • Plaintiff S157/2002 v C of A [2003] HCA 2 (4 February 2003).

By s474 the Migration Act (the Act) provided that a “privative clause decision” was final and was not subject to the remedies of prohibition, mandamus, injunction, declaration (found in s75(v) of the Constitution) or certiorari. A “privative clause decision” was defined to mean a decision of an administrative character made, proposed or required to be made under the Act. By s486A the Act required any application to the High Court for relief under s75(v) of the Constitution be made within 35 days of the actual notification of the decision. The plaintiff desired to institute proceedings in the High Court after the time limit in s486A had expired in respect of the refusal to grant him a visa. He brought an action in the original jurisdiction of the High Court claiming ss474(1) and 486A were invalid. The High Court generally concluded that s474(1) of the Act was not invalid because, on its proper construction, the term “privative clause decision” referred to decisions made absent jurisdictional error. On this basis the High Court concluded that it remained possible to seek the constitutional writs in respect of decisions made under the Migration Act where the relief was sought on the grounds of jurisdictional error: Gleeson CJ [23], [37]; Gaudron, McHugh, Gummow, Kirby, Hayne JJ [76], [83]; sim Callinan J [160]. The Court rejected the contention that the privative clause provision was a “lead” provision which effected an implied amendment to all the other provisions of the Act and its complex regulations. The majority observed that the question of whether a decision involved jurisdictional error may involve reconciling the provisions under which the decision was made with the privative clause provision. [77]–[78] The Court concluded s486A of the Act did not apply to prevent the proceeding proposed by the plaintiff because it only prevented decisions in respect of a “privative clause decision” and did not prevent review of decisions on the ground of jurisdictional error. Questions reserved answered accordingly.

Constitutional law – legislative power of the Commonwealth – implied limitation – viability of the states – discriminatory taxation legislation.

  • Austin v Commonwealth [2003] HCA 3 (5 February 2003).

The High Court concluded that the provisions of commonwealth income tax legislation which required state judicial officers to pay a commonwealth superannuation contributions surcharge by means of a lump sum on retirement were invalid. The Court generally reasoned that the Commonwealth was subject in exercising its legislative powers to an implied limitation which required it to respect the continued viability of the states. The Court reasoned that this would prevent the Commonwealth enacting a discriminatory tax against state officers and the legislation which attempted to achieve this indirectly was invalid.

Negligence – liability – vicarious liability – non-delegable duty – liability of school authorities for sexual assaults by teachers.

  • NSW v Lepore; Samin v Q; Rich v Q [2003] HCA 4 (6 February 2003).

The High Court heard two matters. In NSW v Lepore, the respondent was molested as a school student by a teacher who took an occasion of disciplining the student to commit sexual assaults for which the teacher was convicted. L sued the teacher (who did not appear) and New South Wales. The primary judge found there had been assault by the teacher and that therefore New South Wales was liable. The Court of Appeal concluded the state was liable for non-delegable duty: (2001) 52 NSWLR 420. In the second matters (Samin v Q; Rich v Q), two girls were molested by the single teacher at a country school. The plaintiffs alleged breach of a non-delegable duty in the pleadings rather than vicarious liability. The Court of Appeal in Queensland concluded the state was not liable for non-delegable duty: (2001) Aust Torts R 81-626. The High Court considered the extent to which authorities could be liable in negligence where there was no allegation of fault by authorities and any damage was caused by servants or agents on a frolic. The Court considered generally the allegations of liability on the basis of non-delegable duty of care failed, but that the allegations which had, or could be, made alleging the carer’s liability may succeed depending on the evidence. Orders accordingly.

Trade practices – markets.

  • Boral Besser Masonry Ltd v ACCC [2003] HCA 5 (7 February 2003).

The High Court considered when a trader had a substantial degree of market power and how use of that power for a prescribed purpose contrary to s46 of the Trade Practices Act 1974 (Cth) was to be proved.

THOMAS HURLEY is a member of the Victorian Bar. The numbers in square brackets refer to the paragraph numbers in the judgment. The full version of these judgments can be found on the AustLII website

Federal Court Judgments

Cite as: (2003) 77(3) LIJ, p.59

By Thomas Hurley

Customs - anti-dumping – relevant considerations.

  • Pilkington (Aust) Ltd v Minister of State for Justice & Customs [2002] FCAFC 423 (19 December 2002).

A Full Court considered what were relevant considerations in a decision by the Minister in deciding whether or not to take anti-dumping measures under the Customs Act 1901 (Cth). [124]

Discrimination – “combat-related duties”.

  • C of A v Williams [2002] FCAFC 435 (20 December 2002).

A Full Court differed from the primary judge and concluded that a communications and information systems controller in the RAAF was a person involved in combat-related duties within s53(1), (2) of the Disability Discrimination Act 1993 (Cth).

Discrimination – “particular employment”.

  • Cosma v Qantas Airways Ltd [2002] FCAFC 425 (20 December 2002).

A Full Court considered when an employer discriminated against an employee on the grounds of disability by offering rehabilitation in an area that was not in a “particular employment” [20] of the employee within s15(4) of the Disability Discrimination Act 1992 (Cth).

Evidence – legal professional privilege.

  • C of T v Pratt Holdings Pty Ltd [2003] FCA 6 (10 January 2003).

Kenny J considered whether solicitor-client privilege had been lost where documents were prepared by solicitors for submission to an accounting firm for its opinion.

Income tax – income – proceeds of sale of trading stock subject to genuine dispute in tax year.

  • BHP Billiton Petroleum (Bass Strait) Pty v C of T [2002] FACFC 433 (20 December 2002).

A Full Court considered the significance of accounting practice in determining when income was derived by a taxpayer when the proceeds of sale by a taxpayer of its trading stock in the relevant tax year were subject to a bona fide dispute and not paid on invoice. [101-102]

Insurance – carrying on insurance business.

  • The Barclay MIS Group of Companies Pty Ltd v ASIC [2002] FCA 1606 (23 December 2002).

Dowsett J considered when a person carried on insurance business and when a product sold constituted contract of insurance of providing a financial service.

Migration – detention.

  • Applicant WAIW of 2002 v MIMIA [2002] FCA 1621 (23 December 2002).

Finkelstein J concluded a person who had been in detention since 1999 and who had asked to be returned to Syria in April 2002 but remained in detention was entitled to interlocutory relief releasing him from detention on undertakings that he would be available for removal if negotiations with the Syrian government were fruitful.

Migration – jurisdictional error – bad faith – departure of appellant from Australia.

  • MIMIA v SBAN [2002] FCAFC 431 (18 December 2002).

A Full Court concluded that an appeal to it was not redundant where the respondent non-citizen had voluntarily left Australia. [14] The Court observed that allegations of bad faith against a tribunal are equivalent to allegations of fraud and are not to be made lightly. [8-9] The Court observed that an allegation of bad faith, like an allegation of fraud, should not be advanced by an advocate unless there are proper grounds for doing do.

Migration – jurisdictional error – failure to consider relevant evidence.

  • WAGO of 2002 v MIMIA [2002] FCAFC 437 (20 December 2002).

A Full Court concluded the RRT had made a jurisdictional error where it rejected determinative evidence from a corroborative witness because of the failure of the claimant to refer to the evidence earlier when the claimant could not have known of the witness until shortly before the hearing. The Court concluded the RRT had exceeded its jurisdiction by proceeding on an unwarranted assumption on matters relevant to forming its view on credibility. [54]

Migration – jurisdictional error – procedural fairness.

  • SGJB v MIMIA [2002] FCA 1601 (19 December 2002).

Jacobson J concluded the RRT had not conducted the review in accordance with the requirements of procedural fairness where it rejected the evidence of a witness for the application in its reason having given the applicant every expectation the evidence would be accepted. [97] He also concluded the finding of the MRT that a relationship was “concocted” was so against the evidence viewed in light of the attitude of the RRT at the hearing that a case of bias was established.

Migration – mandatory detention.

  • WAIS v MIMIA [2002] FCA 1625 (23 December 2002).

French J dismissed an application by an Iraqi detained since August 1999 who had asked to be removed but remained in detention. (Like applications were dismissed by Beaumont J in NAES v MIMIA [2003] FCA 2 and NAET v MIMIA [2003] FCA 1).

Migration – mandatory detention – whether removal “reasonably practicable”.

  • NAKG of 2002 v MIMIA [2002] FCA 1600 (19 December 2002).

Jacobson J concluded [41] that the power to detain an unlawful non-citizen was limited to the period when removal in the reasonably foreseeable future was reasonably practicable.

Migration – procedure – proceedings brought in incorrect name.

  • Basbas v MIMIA [2002] FCA 1602 (19 December 2002).

Gray J concluded the requirements of the Migration Act that proceedings in the Federal Court be brought by only certain persons were procedural and not jurisdictional and amended the title of proceedings brought in the name of the incorrect person to substitute the name of the correct person.

Migration – proceedings – infant.

  • SBAH of 2001 v MIMIA [2002] FCAFC 426 (19 December 2002).

A Full Court considered whether proceedings in the RRT and Federal Court by a mother bound her infant without the appointment of a tutor. [29]

Migration – review – no evidence.

  • SGFB v MIMIA [2002] FCAFC 422 (18 December 2002).

A Full Court considered the application in determining the “no evidence ground” of the decision of the High Court in MIMA v Rajamanikkam (2002) 190 ALR 42. [21]

Migration – student visa – attendance requirement.

  • Shrestha v MIMIA [2002] FCA 1607 (20 December 2002).

Hill J considered how the requirement in condition 8202 of the Migration (1994) Regulations, that a student attend 80 per cent of the course, was to be construed.

Migration – visa cancellation on character grounds.

  • Wong v MIMIA [2002] FCAFC 440 (20 December 2002).

The Full Court concluded the primary judge did not err in reviewing a decision to cancel a visa on character grounds in assessing questions of improper purpose and national interest. The Court narrowly rejected a submission that the invitation to make representations was a futility.

Motor vehicles – compulsory insurance against “any liability”.

  • TAC v Lease Auto Pty Ltd [2002] FCAFC 430 (18 December 2002).

A Full Court concluded that the provisions of s94(1)(a) of the Transport Accident Act 1986 (Vic), which require the TAC to indemnify the owner of a vehicle for death or injury caused by it, did not extend to injuries caused by breach of a contractual term for fitness for purpose implied by s71(2) of the Trade Practices Act into an agreement to hire the vehicle.

Social security – suspension of benefits where claimant in psychiatric hospital.

  • Franks v Secretary, Department of F & CS [2002] FCAFC 436 (20 December 2002).

A Full Court considered when a person detained in a psychiatric facility as unfit for trial ceased to be entitled to a social security pension by operation of s1158(b) of the Social Security Act 1991 (Cth) and when a person engaged in activities amounting to a “course of rehabilitation”.

Trade practices – misleading representations with respect to “price”.

  • ACCC v Dell Computer Pty Ltd [2002] FCAFC 434 (20 December 2002).

A Full Court considered when false representations were made with respect to “price” where the goods were sold as delivered goods and payment of the delivery charge, in addition to the price, was required. The Court considered when failure to distinguish between the price of the goods and the price of delivery would be misleading.

Veterans’ entitlement – causation.

  • Repatriation Commission v Hendy [2002] FCA 424 (19 December 2002).

A Full Court concluded whether a war-caused injury or war-caused disease alone [38] rendered the veteran incapable for remunerative work.

THOMAS HURLEY is a member of the Victorian Bar. The numbers in square brackets refer to the paragraph numbers in the judgment. The full version of these judgments can be found on the AustLII website

Supreme Court Judgments

Cite as: (2003) 77(3) LIJ, p.61

By Greg Reinhardt

Obligations on discovery.

  • British American Tobacco Australia Services Limited v Cowell (as representing the estate of Rolah Ann McCabe, deceased) [2002] VSCA 197 (unreported, 6 December 2002, No 8121/2001, Phillips, Batt and Buchanan JJA).

This appeal is the latest decision in a series of cases involving claims against tobacco companies.

In the August 2002 LIJ (page 85), I made reference to the decision of Eames J in McCabe v British American Tobacco Australia Services Limited [2002] VSC 73 and noted that an appeal was to be heard by the Court of Appeal from his Honour’s order giving judgment for the plaintiff. That appeal was heard in late August and early September and the Court of Appeal’s judgment was handed down on 6 December 2002.

The plaintiff had applied to Eames J for an order that the defendant’s defence be struck out for alleged failure by the defendant to comply with an order for discovery made on 6 December 2001. The plaintiff complained that the defendant had failed to disclose documents which had been discovered in earlier litigation (the Cremona litigation) (these included 15 child smoking studies) and which it subsequently transpired had been destroyed by the defendant subsequent to that litigation and which were the subject of the order of 6 December. The defendant as part of the defendant’s “document retention policy” had destroyed those documents. None of the documents had been destroyed while litigation was on foot.

Eames J held that the Cremona documents ought to have been disclosed by the defendant. The Court of Appeal was not satisfied, having regard to the wording of the 6 December order, that the documents ought to have been disclosed. The documents could not be said to be documents “of” the defendant within the terms of the order; they had been written by persons who were not employees or agents of the defendant. Any ambiguity in the order should favour the defendant, having regard to the draconian nature of an order to strike out a defence. The proper order would be an order for further and better discovery.

The defendant’s affidavits of discovery did not state that the documents had been destroyed. Eames J perceived this as involving some sinister purpose behind the destruction of the documents and more generally the defendant’s document retention policy. There was evidence before his Honour of “warehousing”, that is, the establishment of a computer database on behalf of the Tobacco Institute of Australia and three tobacco companies. That database, according to Eames J, ought to have been disclosed. His Honour said of the “warehousing”:

“The warehousing arrangements demonstrate, too, that the strategy devised and modified from time to time by Clayton Utz [the solicitors for the defendant] continues to be applied. That strengthens my conclusion that the purpose behind the destruction of documents under the post-1985 Document Retention Policy was to deny a fair trial to any plaintiff who later brought proceedings, and that the innocent purposes advanced by the company are merely employed in an attempt to hide that reality.” ([2002] VSC 73 at [336]).

The Court of Appeal, while considering that any defect in the defendant’s affidavits of discovery might have been remedied by an order for further and better discovery, went on to consider the defendant’s document retention policy.

The defendant’s document retention policy
The Court of Appeal noted that prior to 1985 the defendant had devised a policy to regulate the storage, archiving and destruction of its records. In 1985, a new policy was implemented. Eames J said of this policy:

“1. The 1985 Documentation Retention Policy was created under the auspices of AMATIL in the anticipation that there would be litigation brought against WD & HO Wills with respect to smoking and health issues. 2. The primary purpose of the policy, as then formulated, was to ensure the destruction of material which would be harmful to the defence of any such litigation. 3. Clayton Utz advised Wills on the wording of the policy, and ensured that words were inserted into the written policy document to which reference could be made in order to assert innocent intention and to disguise the true purpose of the policy.” ([2002] VSC 73 at [289]).

The policy was revised in 1990. Eames J said of this:

“4. After Wills [WD & HO Wills (Australia) Limited] was taken over by the present defendant concern arose in 1990 within the parent BAT Group as to the dangers of litigation in Australia causing the exposure of research reports which would be harmful to BAT [British American Tobacco] companies worldwide. It was resolved to review the Document Retention Policy for fear that the 1985 wording, and the timing of its introduction, and of the destruction of sensitive documents which had already taken place, might lead to adverse inferences being drawn against the company, or more serious consequences, in future litigation, and might facilitate the release worldwide of BATCO research. 5. In March 1990 Wills, through its in house counsel, Gulson, sought updated advice from Clayton Utz as to how the Document Retention Policy could be handled with least risk of adverse consequences in litigation. Accompanying that request for advice was a memorandum written by an English lawyer, Mr Andrew Foyle of Lovell, White Durrant, which was unambiguous as to the true purpose of the policy.” ([2002] VSC 73 at [289]).

The Court of Appeal noted in relation to the Foyle memorandum:

“The Foyle memorandum is instructive because, in prefacing in Part C the advice actually requested, two things were stated: first, that it was understood that ‘the destruction of documents now or in the past by Wills contravenes no law or rule in Australia’ in the sense that Wills could do what it liked with its own documents, although ‘if a court disapproved strongly of the destruction of the documents . . . it might draw adverse inferences from that fact’; and secondly, that it should be assumed that Wills documents will be a matter of great interest to a plaintiff’s lawyer in a product liability action. How Wills responded, it was said, would require careful thought. In that context, it was said, ‘what is needed is a strategy for handling the documents issue in litigation’.” ([2002] VSCA 197 at [88]).

Mr Wilson of Clayton Utz gave written and oral advice to the defendant, on receipt of Mr Foyle’s memorandum. Mr Wilson advised in relation to the adverse inference principle by reference to the decision of the High Court in Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245. The Court of Appeal noted (at [2002] VSCA 197 [91]):

“If that law applied, he added, ‘destruction per se is likely to have the effect of interfering with the administration of justice’. But that, he continued, was ‘subject . . . to the test of intention’ and to the fact that in Lane’s case the High Court was ‘dealing with a situation where litigation was in esse and not merely contemplated’. It seems to us that all of this was proper advice: it was not advice as the judge described it, to seize upon innocent intention to justify what was not at all innocent in order to deflect adverse consequences. No useful purpose would be served in going through the advice, point by point; nor is it necessary to analyse its correctness. Suffice it to say that we do not read the letter as justifying the very significant conclusions drawn by the judge about it; and importantly we do not read it as justifying the findings to which we have referred in paragraph [82] above.”

The Court of Appeal concluded, in relation to the role of Clayton Utz:

“Thus, for the reasons given we think that his Honour erred in the findings he made with respect to the part played by Clayton Utz in the formulation of policy in 1985 and in 1990. In particular we consider that there was no evidence to justify the finding that, in giving advice as requested by the defendant, Mr Wilson ‘devised a strategy’ by which the defendant might destroy damaging documents while pretending to innocent intention, the crux of his Honour’s criticism. The judge was critical of the wholesale destruction of documents both before 1998 and during it, and we shall turn to that in due course. But in so far as that criticism depended upon advice from Clayton Utz in 1985 and 1990, there was a further difficulty in his Honour’s criticism. That is because in 1992 the document retention policy was subjected to a complete review by Mr Harrison, who rewrote the policy after attending a conference for the purpose in Kuala Lumpur. The conduct of Mr Harrison as explained in evidence was surely a break in any chain of responsibility going back to earlier years.” ([2002] VSCA 197 at [98]).

Argument on legal professional privilege
The defendant had sought advice from Mallesons, solicitors, on 9 March 1998, consequent on the resolution of the latest piece of tobacco litigation involving the defendant, and Mallesons had given advice on 19 March in relation to the application of the document retention policy. Both pieces of correspondence (and attachments) had been produced by the defendant as exhibits to an affidavit in the discovery proceedings before Eames J. Clearly any legal professional privilege attaching to those documents had been waived. The plaintiff argued that the defendant had also waived any privilege in relation to earlier advices in respect of the document retention policy. Eames J had held that the privilege in relation to the other documents had also been waived.

The Court of Appeal noted that the High Court had held in Mann v Carnell (1999) 201 CLR 1, 13 that the test is whether it would be “inconsistent” for a party to rely on, and so to waive legal professional privilege in respect of, the one [document] without also being taken to have waived privilege in respect of the other (at [121]). There was no need to have access to earlier documents to understand the exhibited documents. The two exhibits did not, in any relevant sense, themselves create “an inaccurate perception of the protected communications” (at [129]). The Court of Appeal said:

“ . . . As already indicated, the mere reference to legal advice may make that legal advice relevant, but it says nothing as to the waiver of privilege. No doubt if a party claiming to have acted upon legal advice then relies upon privilege to protect that advice from scrutiny, the claim will be less than persuasive; but that does not mean that the privilege has been waived, by implication. Hence the error, in our opinion, in his Honour’s referring to the insight that the documents in question might provide ‘into the content, circumstances and consistency of the advice which was requested and received’. That may have been so, but it did not mean that therefore privilege had been waived.” [130]

Destruction of documents before litigation commenced
Eames J had based his decision in respect of the destruction of documents by the defendant prior to the commencement of the proceeding on notions of fairness and had held that the plaintiff had been denied a fair trial by reason of the destruction of the documents.

The Court of Appeal considered several cases in England and the position in the United States. The Court concluded:

“Accordingly, there being no authority directly in point, we consider that this court should state plainly that where one party alleges against the other the destruction of documents before the commencement of the proceeding to the prejudice of the party complaining, the criterion for the court’s intervention (otherwise than by the drawing of adverse inferences, and particularly if the sanction sought is the striking out of the pleading) is whether that conduct of the other party amounted to an attempt to pervert the course of justice or, if open, contempt of court occurring before the litigation was on foot. We say nothing about the drawing of adverse inferences because that is not raised for consideration on this appeal. Nor, for the reason already given, do we express any opinion at all on whether the conduct which was under challenge in this instance, and which the defendant sought to justify by reference to its document retention policy, did or did not amount to an attempt to pervert the course of justice. That it did was not the case raised and considered below and so for the purpose of this appeal it must be taken that at first instance the court was not entitled to impose any sanction on that ground. More particularly it must follow too, contrary to his Honour’s conclusion, that the destruction of documents by the defendant in March-April 1998, and before, was not shown to be in breach of any rules relating to discovery in this proceeding.”

The plaintiff had not sought to justify the strike out order on the basis that there had been a contempt of court or a perversion of the course of justice.

Eames J had found prejudice in the defendant’s destruction of the documents. However, once it was established that the defendant was not in breach of any obligation which it had in destroying the documents, the only relevant prejudice was the defendant’s failure to comply with the order of 6 December 2001. As to this, there was no sufficient ground for striking out – the defendants might have been ordered to provide further and better discovery.

The Court of Appeal was of the view that Eames J should not have struck out the defendant’s defence. At paragraph [188], the Court said:

“In the cases to which reference has already been made, we have seen that, in considering the remedy to be applied, efforts were made to relate the destruction of the documents in question to the issues raised in the case. There was no such attempt made in this instance. But surely the defaults of the defendant in making discovery, such as they were, and the destruction of documents more generally, were not relevant to the allegations that the plaintiff smoked cigarettes, that she had done so for 40 years, that she had lung cancer and that the cancer was, in her case, related to the smoking. All of these were matters upon which she should have been required to make proof and yet the judge simply made an order by which the plaintiff was relieved of that need. By striking out the defence in all respects save loss and damage, all other allegations in the statement of claim were taken to be admitted and so it became unnecessary for her to prove even that she had smoked, let alone smoked the defendant’s cigarettes. It is true that when it came time to assess damages an offer was made on behalf of the plaintiff to prove that she had been smoking for 40 years and the defendant’s counsel said that that would not be necessary; but of course it was not necessary because the allegation in the statement of claim was already admitted by virtue of the order for striking out. In our opinion, there was no justification, even if the judge’s criticisms of the defendant were accepted, for relieving the plaintiff from the need to prove anything in respect of her claim save damage. The remedy should have been related more directly to the prejudice seen to have been suffered. With respect, the remedy adopted was out of proportion to the wrong, even if the judge’s criticisms of the defendant’s conduct, both in relation to the order for discovery and the destruction of documents more generally, were to be accepted.” (end notes omitted)

The appeal was allowed.

[It is understood that the plaintiff is seeking special leave to appeal to the High Court.]

PROFESSOR GREG REINHARDT is executive director of the Australian Institute of Judicial Administration and a member of the Faculty of Law at Monash University. The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of these judgments can be found on the AustLII website


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