Palavi v Radio 2UE Sydney Pty Ltd

[2011] NSWCA 264

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Discovery
3. › Failure to comply with discovery obligations
4. › Deliberate destruction of documents
5. › Abuse of process
6. › Power to strike out or limit plaintiff's claim
7. › Whether proportionate response
8. › Civil Procedure Act 2005 (NSW), ss 56-61
9. › UCPR, rr 13.4(1)(c), 13.5
1. Practice and Procedure
2. › Abuse of process
3. › Destruction of documents in defiance of court orders
4. › Whether conduct brought administration of justice into disrepute
5. › Whether fair trial still possible
6. › Relevance of fair trial possibility to exercise of discretion
1. Practice and Procedure
2. › Case management
3. › Civil Procedure Act 2005 (NSW), ss 56-58
4. › Just resolution of disputes
5. › Proportionality of sanctions for procedural default
6. › Whether case management provisions require consideration beyond fair trial possibility
1. Appeal
2. › Discretionary orders
3. › Re-exercise of discretion
4. › Whether appellate court should re-exercise discretion where primary judge made errors of fact
5. › House v The King principles

Quick Take

The deliberate destruction of documents in defiance of discovery obligations constitutes an abuse of process that may justify striking out part of a plaintiff's claim, even where a fair trial remains theoretically possible, if the conduct brings the administration of justice into disrepute and creates a not insignificant risk to the other party's ability to propound its case. The sanction must be proportionate, having regard to the Civil Procedure Act 2005 (NSW) ss 56-58, the fundamental right of access to courts, and the degree of prejudice actually caused. The UCPR Pt 21 no longer provides for general discovery.