Case: Allen v Tobias [1958] HCA 13 ; (1958) 98 CLR 367
Outcome: referred to
for the applicants stated that the applicants proposed to invite the Court to draw an inference or inferences against the respondent from various facts including that: (1) emails were deleted; (2) the contents of a laptop computer used by Ms Allen were erased; (3) not all Channel Reports have been made available; and (4) the backup TL drive files were not retained. In support of this submission, the applicants referred to the following three authorities: Gray v Haig [1855] EngR 469 ; (1855) 20 Beav 219 ; The Ophelia [1916] 2 AC 206 ; and Allen v Tobias [1958] HCA 13 ; (1958) 98 CLR 367. The material fact was, so the applicants said, the destruction of documents. If they were to plead the inferences to be drawn from this destruction, then, so they said, they would be pleading impermissibly matters of evidence. The applicants' case was that it was the fact of destruction by the respondent that was sufficient and necessary for their pleading. Allen v Tobias [1958] HCA 13 ; (1958) 98 CLR 367 largely confirms this view of The Ophelia [1916] 2 AC 206. Allen v Tobias commenced as an action for penalties against one Leslie William Allen on the ground that he had acted as a shire councillor, while being disqualified from so acting since he was concerned in a contract with the municipality concerning the municipal rubbish tip. There was a question as to whether the documents in which the agreement was made were executed by him. The trial judge said that there was a suspicion that the documents were destroyed by the defendant "lest the fact of execution ... might prove difficult for the defendant in anticipated litigation": 98 CLR at 371. In the High Court, this observation led Dixon CJ, McTiernan and Williams JJ to say (98 CLR at 375): It is perhaps desirable to refer again to one question of fact which Sholl J [the trial judge] left unsettled. Did the defendant and his brothers execute the agreement with the council drawn up in April 1953, the three copies of which were destroyed by the defendant? Notwithstanding the difficulty which his Honour felt in arriving at a conclusion, there are two grounds why the Court should proceed upon the assumption that the document was so executed. In the first place to presume the fact against the defendant seems but a proper application to the circumstances of the principle omnia praesumuntur contra spoliatorem . It is a far cry from the municipal warfare of the present case to a case in Prize but no statement of the principle could be more apposite than that of Sir Arthur Channell delivering the opinion of the Privy Council in The Ophelia . ... At this point, their Honours set out the passage at [27] above. The report of Allen v Tobias demonstrated that what was at issue was the deliberate destruction of documents with the intention of destroying evidence in anticipated litigation. As in The Ophelia , this was a proper occasion in which to apply the doctrine of spoliation as an evidentiary presumption. Further, in the High Court, their Honours did not rely on this doctrine alone, but also on the further reason that the statute cast the burden of proof on the defendant to disprove the disqualifying facts.