When is a document retention policy really an unlawful document destruction policy? The issue was critical in McCabe v BATAS in 2002.
The trial judge struck out BATAS's defence because "the conduct of the defendant in relation to the destruction of documentary evidence [which] was part of a document management policy, the predominant purpose of which was the destruction of documentary evidence discoverable by and damaging to the defendant in litigation such as the present case".
But the Victorian Supreme Court, Court of Appeal in British American Tobacco Australia Services Limited v Cowell (as representing the estate of Rolah Ann McCabe, deceased) [2002] VSCA 197 (6 December 2002) set aside the default judgment given in favour of the plaintiff for her claim for damages, both general and exemplary, for personal injury allegedly sustained by her through smoking the cigarettes of the defendant and its predecessors.
In Victoria, the issue of unlawful document destruction is now dealt with by The Crimes (Document Destruction) Act 2006
The Act creates an offence of destruction of evidence which is, or is likely to be, required in legal proceedings that are in progress or are to be, or may be, commenced in the future.
But is that the end of allegations of document destruction by BATAS? No.
In (Re Mowbray) Brambles Australia Ltd v British American Tobacco Australia Services Ltd [2006] NSWDDT 15, the Dust Diseases Tribunal of NSW has given an order for discovery of documents by BATAS in response to Brambles' claim that "BATAS, by reason of health and medical studies in the public domain, its own researches and investigations, and researches and investigations available to it from related corporate entities, at all relevant times knew that its products were addictive and otherwise physically harmful."
In this case, the late Alan Mowbray, a motor mechanic, contracted lung cancer in 2001 and died on 23 January 2002. His wife sued Brambles, his former employer, in negligence, asserting that the cancer was caused by asbestos fibres contained in the brake pads upon which he worked in this employment. On 27 February 2002 Brambles consented to the entry of judgment in favour of Mrs Mowbray in the sum of $200,000. Brambles, asserting that Mr Mowbray's cancer was also caused by cigarettes manufactured by BATAS, which he smoked between 1946 and 2000, seek from BATAS contribution to the judgment.
The bottom line? It's not just what you keep, it's what and when you destroy that's also important.