"The applicant seeks special leave to appeal in order to reinstate an order set aside in the Court of Appeal of Victoria striking out the respondent’s defence to a claim for damages for personal injury. The central complaint against the respondent was that before the plaintiff’s proceedings had been instituted, but at a time when the defendant anticipated that proceedings like those later brought by the plaintiff would be instituted, the defendant destroyed documents relevant to the claim which the plaintiff made. In addition to reversing a number of findings of fact of the trial judge, the Court of Appeal expressed the view that where it is alleged that a defendant has destroyed documents before the commencement of a proceeding to the prejudice of a party complaining a court should not strike out the defence of the party who destroyed documents unless destroying the documents amounted to an attempt to pervert the course of justice or a contempt of court. At first instance the plaintiff did not seek to make out a case of an attempt to pervert the course of justice or of contempt of court. We see no reason to doubt the conclusion of the Court of Appeal that the plaintiff should not, on appeal to that court, have been permitted to put the case in that way and it follows that the consideration of the breadth of application of those principles would not arise directly in an appeal to this Court."