Clark v NSW

[2012] NSWCA 139

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Abuse of process
3. › Destruction of evidence
4. › Destruction of evidence after commencement of proceedings and in face of court directions
5. › Power to strike out or dismiss proceedings
6. › Whether proportionate response to dismiss all causes of action or only those connected to destroyed evidence
7. › Civil Procedure Act 2005 (NSW), ss 56-58
1. Practice and Procedure
2. › Abuse of process
3. › Destruction of evidence
4. › Principles governing consequences of destruction of potential evidence by a party
5. › Whether fair trial possible in absence of destroyed material
6. › Protection of administration of justice
1. Appeal
2. › Discretionary orders
3. › Re-exercise of discretion
4. › Whether trial judge erred in finding inextricable link between causes of action
5. › House v The King (1936) 55 CLR 499
1. Practice and Procedure
2. › Additional evidence on appeal
3. › Whether special grounds established
4. › Reliance upon incompetence of counsel at trial
5. › Supreme Court Act 1970 (NSW), s 75A(8)-(9)

Quick Take

Where a plaintiff destroys evidence constituting an abuse of process, the court's response must be proportionate: only those causes of action to which the destroyed evidence was material should be dismissed, not discrete causes of action that can proceed independently. The assumed tactical link between causes of action at the time evidence existed does not persist once the relevant cause of action is dismissed. The principles in Johnson J's judgment at [100]-[104] of Clark v State of NSW [2006] NSWSC 673 (approved in Palavi) are qualified by the requirement of proportionality informed by the Civil Procedure Act 2005 (NSW), ss 56-58.