British American Tobacco Australia Services Ltd v Cowell

British American Tobacco Australia Services Limited, a major tobacco company, sought compensation from Cowell, a former employee who had developed lung cancer allegedly due to exposure to tobacco smoke at work. The dispute centred around the destruction of documents by the defendant, which occurred after the defendant anticipated litigation but before it was formally commenced. The matter was heard in the Supreme Court of Victoria. The primary legal issue was whether the defendant's destruction of documents, following legal advice, was justified, and whether the affidavit of documents contained sufficient information to warrant striking out the defendant's entire defence. Additionally, the court had to determine if the defendant had waived legal professional privilege in relation to the advice and documents.

The court found that the defendant's destruction of documents was not justified as it occurred post-advice, and the privilege waiver was considered only in respect of the specific advice and letter, not documents reaching back many years. The test for imputed waiver was also examined, and it was held that the defendant had not waived privilege for the broader set of documents. The court determined that the affidavit of documents did not meet the necessary standards, and the defendant's entire defence was struck out due to these deficiencies.

The court's reasoning was based on the fact that the destruction of documents happened after the defendant had taken legal advice, which did not adequately justify the destruction. The waiver of privilege was limited to the specific advice and letter, and there was no imputed waiver for the older documents. The deficiencies in the affidavit of documents were substantial enough to warrant striking out the entire defence. The court ordered that the defendant's entire defence be struck out and provided further directions for the proceeding to continue.