Australia

Mr Mowbray died from lung cancer in January 2002. His wife sued Brambles, his former employer, alleging that it had negligently exposed him to asbestos fibres in the course of his work. Brambles consented to judgment being entered against it but then sought contribution from British American Tobacco Australia Services, whose cigarettes Mr Mowbray had also smoked. Brambles alleged that BATAS knew that its products were addictive and physically harmful and concealed its own research and investigations into these matters. Further, BATAS, incompatibly with its own knowledge, made public statements that denied or called into question evidence that tobacco was addictive and harmful. In particular, Brambles alleged that pursuant to the so-called "Document Retention Policies", BATAS: intentionally destroyed prejudicial documents with the purpose of placing those documents beyond the reach of litigants; placed prejudicial documents in the hands of third parties, again to keep them out of reach of litigants; placed prejudicial documents in the hands of lawyers under cover of spurious requests for legal advice to facilitate privilege claims; and falsely asserted an innocent "housekeeping" explanation for destroying prejudicial documents.

In this case, Brambles had applied for orders that BATAS provide further and better discovery. In support of its application Brambles adduced evidence from Frederick Gulson, the Company Secretary and in-house solicitor to BATAS between October 1989 to December 1990, about BATAS's "Document Retention Policies", including by tendering transcripts of evidence Mr Gulson gave in United States of America v Phillip Morris USA Inc. Judge Curtis had earlier excluded excerpts of Mr Gulson's evidence as being the subject of lawyer/client privilege. However, Brambles now argued that those passages should be admitted into evidence on the basis of the "fraud exception" (s125 of the Evidence Act).

Judge Curtis found that, on the present state of the evidence, BATAS in 1985 drafted or adopted the Document Retention Policy for the purposes of a fraud within the meaning of s125 of the Evidence Act. Further, based on the evidence presented by Brambles, it had sufficiently discharged the onus of demonstrating, prima facie, that it could make good its allegations. Judge Curtis therefore made most of the orders for further and better discovery as requested by Brambles.