AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose and Caitlin Sheehy, Clayton Utz
2.3 Time Limits for Product Liability Claims The limitation period for bringing a product liability claim depends on a number of factors, including the cause of action, the type of claim (eg, in relation to an alleged safety defect), whether the claim is brought under common law or statute, the relevant Australian jurisdiction, and the date of the alleged act or omis - sion. However, in relation to claims for personal injury, the applicable limitation period for an action to be com - menced is: • in most jurisdictions, either within three years of the date the cause of action is discoverable by the plaintiff (the date of discoverability) or 12 years from the date of the act or omission alleged to have caused the death or injury (the long-stop period); or • three years from the date the cause of action accrued. There may also be a mechanism for an extension to be granted by the courts in relation to the applicable limi - tation period for personal injury claims. In determining whether to grant an extension, a court is generally required to consider a number of factors, including having regard to the justice of the case. Again, in most jurisdictions an extension of up to three years can be granted. There are also circumstances in which limita - tion periods are suspended, such as: • where a claimant is suffering from a legal incapac - ity (eg, the claimant is a minor or suffers from a mental or physical disability); or • when a class action is commenced – in which case, the limitation period will not begin to run again until a group member opts out or the pro - ceedings are determined. The limitation period for claims that do not relate to personal injury is, in most cases, six years from when the cause of action accrued. 2.4 Jurisdictional Requirements for Product Liability Claims Australia has both a federal court system and a hier - archy of courts in each of the states and territories.
The High Court of Australia deals with constitutional disputes and appeals (with leave) from either the full federal court or a state or territory court of appeal. Both federal and state courts may exercise jurisdiction in respect of the causes of action under the Austral - ian Consumer Law outlined in 2.1 Product Liability Causes of Action and Sources of Law . In so far as a claim relates to defendants and conduct within Aus - tralia, proceedings may be commenced in any court of competent jurisdiction, regardless of where the conduct occurred. However, there is cross-vesting legislation that provides that the proceedings may be moved from one jurisdiction to another if they are in The Australian Consumer Law has long-arm jurisdic - tion and also regulates the conduct of foreign corpo - rations that are “carrying on business” in Australia. In order for an Australian court to validly exercise juris - diction over a foreign corporation, that corporation must be validly served with initiating process. Some courts require leave to be obtained to serve overseas corporations, and for the court to be satisfied that the claim has a sufficient nexus to Australia to justify it being brought in Australia. In other courts, there is no requirement to seek leave to serve an overseas cor - poration when certain claims (such as those under the Australian Consumer Law) are being made. The court rules in each jurisdiction set out a list of circumstances in which service outside Australia may be permitted. One such circumstance is that the claim is seeking recovery of damage suffered wholly or partly in Aus - tralia; this is often sufficient in product liability claims to justify service on a foreign defendant. an inappropriate forum. Foreign Corporations Australia is party to the Hague Convention on the Ser - vice Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965, so – if authorised – service may be effected through Hague Convention means on other treaty parties. 2.5 Pre-Action Procedures and Requirements for Product Liability Claims Under Federal Legislation There are mandatory steps that must be taken at a federal level and in some states and territories in Aus - tralia before formal proceedings can be commenced
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