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5.2 Australian Product Liability Law.

A secondary issue in regard to the manufactured product. CSL were manufacturing a commercial product for sale to the Australian public via the medical profession and therefore is subject to Australian Product Liability Laws.


Set out below is an overview of the procedural steps involved in a typical product liability action in the Supreme Court of New SouthWales.

Although the procedural steps vary slightly between the various State Supreme Courts and the Australian Federal Court, there are few differences of substance.

The commencement of Proceedings will be commenced by Statement of Claim. This is a document setting out the material facts upon which the plaintiff alleges gives rise to the cause or causes of action on which he or she will rely, particulars of the nature and extent of the plaintiff's injuries or other loss and the relief being sought. Australian courts have jurisdiction over persons and corporations resident or carrying on business in Australia. After service of the Statement of Claim, the defendant has a comparatively short period of time, 14-28 days depending upon the circumstances, to either file an Appearance, and thereby submit to the jurisdiction of the Court, or take some other step to have service of the Statement of Claim set aside. Failure to pursue one of these courses may result in the entry of a default judgment by the plaintiff.

Any motions for Summary Judgment or to strike out the Statement of Claim would be filed at this time.


Prior to filing a document setting out the defendant's grounds of defence, it is generally necessary to make a request for further and better particulars of the plaintiff's claim. This is done by way of letters passing between the parties' lawyers. In a product liability claim, the defendant will inevitably seek extensive particulars from the plaintiff both in relation to the factual circumstances giving rise to the claim and the loss and damage allegedly suffered by the plaintiff. Particularization of the plaintiff's claim is important as, if done properly, it can substantially reduce the length of any ultimate trial and minimize the plaintiff's ability to ambush the defendant during its course.

The Defence will generally address the matters pleaded in the Statement of Claim on a paragraph by paragraph basis. The defendant is obliged to plead in its defence the real issues upon which reliance is to be placed at trial. In addition to answering the allegations contained in the Statement of Claim, any affirmative defence, voluntary assumption of risk, contributory negligence or the like, must be specifically pleaded in the Defence.

It is at this point in the proceedings that a defendant would, if necessary, file any Cross-Claim against the plaintiff.. Once filed, a Cross-Claim generally proceeds in a similar manner to the original proceedings.


Once the pleadings have been completed, both plaintiff and defendant may be obliged to give discovery of documents. Whilst discovery is not available as of right in claims for damages
arising out of bodily injury, it will generally be granted by the Court in product liability proceedings where the plaintiff satisfies the Court it is necessary.

A party who is obliged to give discovery must prepare a List of Documents enumerating every document which it has, or has had at some time in the past, in its possession, custody or control that is relevant to the matters in issue. This is a broad test which is interpreted liberally. As a consequence, the discovery process, particularly for a defendant, can be particularly onerous. The List of Documents must also include any documents for which a claim for privilege, for example legal professional privilege (attorney work product), is claimed. The List of Documents will usually be verified by either the party or, in the case of a corporation, by an officer of the corporation.

Upon completion, the Lists of Documents are exchanged and the parties are entitled to inspect their opponents' documents. All documents must be produced for inspection and, if desired, copied, save for those in relation to which a claim for privilege has been advanced.


Australian law does not provide for the taking of depositions prior to trial, save in certain limited circumstances. However, the parties may interrogate each other by way of written Interrogatories. Like Discovery, leave of the Court is required in bodily injury claims.

Considerable restriction has been imposed upon the extent of Interrogatories.

A party is entitled to interrogate its opponent as to facts which tend to support its own case or impeach the case of the opponent. Interrogatories are not, however, limited to matters which are directly in issue and may extend to other matters which are relevant to some question in issue between the parties. The answers to the Interrogatories must be verified by affidavit and may be tendered at trial in whole or in part.

Medical examinations

In cases where the plaintiff alleges that he or she has suffered bodily injury, the defendant is entitled to have the plaintiff medically examined by an appropriate medical expert of its choice. (In the present case the defendant has accepted the diagnosis of the consulting neurologists, referred to the Plaintiff by the treating physician). The results of the medical examination are confidential to the defendant, unless it chooses to use the material at trial. However, the plaintiff can require his or her own medical expert to be present at the examination.
The trial
At the present time, there exist considerable delays between the time when a matter is ready to proceed to trial and the actual commencement of that trial. An expedited hearing will only be granted in exceptional circumstances. The length of the delay varies from State to State and, in most cases, intense efforts are being made to reduce the length of the delay. Trial by jury is not automatic in civil actions, but either party can requisition a jury in some cases. Jury trials are becoming less common in long, complex civil actions.

In the period prior to a matter being set down for trial, the parties will generally come before a judicial officer on a number of occasions to confirm that the matter is ready to proceed and explore any possibilities of settlement. Expert witness reports to be relied on at trial must be served on the other party and frequently directions are made concerning these reports by the judicial officer.

The trial, and indeed any subsequent appeal, will be conducted orally to a very great extent. There is, however, an increasing tendency for the courts to make orders that the evidence-in-chief of witnesses, and in particular expert witnesses, be prepared in writing and exchanged prior to the commencement of the trial.

Where written statements of evidence-in-chief have been exchanged prior to the trial, the statement will be tendered, any minor additions or modifications addressed orally, and the witness turned over for cross-examination. In Australian courts, a witness may be cross-examined at large and without restriction as to time. As a consequence, it is possible to address a witness's evidence in minute detail during the cross-examination.

The admissibility of any evidence subject to objection is determined during the course of the trial rather than by way of pre-trial motion. In addition to oral evidence, documents produced on subpoena may be tendered as part of a party's case. At the conclusion of the evidence, the Court will hear closing arguments which address both questions of fact and law. Where the matter is being heard by a jury, the judge presiding at the trial will address the jury at the conclusion of the parties' submissions, summarizing the evidence and directing them as to the law. It is then for the jury to make such findings of fact as may be appropriate and, if necessary, assess the quantum of damages.


Any party which is dissatisfied with the outcome of the trial, whether it be heard by judge and jury or judge sitting alone, may appeal to the Court of Appeal. The appeal will be heard by a bench of three judges of the Court of Appeal.

The appeal proceedings are conducted orally, although "skeleton" outlines of each party's argument are exchanged shortly prior to the hearing of the appeal. Although appeals will generally turn on questions of law, it is not uncommon for parts of the evidence used at trial to be reviewed during the course of the appeal. As a consequence, the hearing of an appeal in a complex matter may continue over a number of days or even weeks.

A party dissatisfied with the decision of the Court of Appeal may seek leave to appeal to the High Court of Australia - the country's ultimate Court of Appeal. Appeals to the High Court of Australia are, essentially, restricted to questions of law. A party is not entitled to appeal to the High Court as of right, but first must convince the Court that there is a significant question to be determined before leave will be granted.